| Kan. | Jan 15, 1895
The opinion of the court was delivered by
The trial court held that the evidence showed an abandonment by Mrs. Mather of her right to an easement over this land. The only evidence to support that claim is that showing that she placed a hedge fence along the north line of the land conveyed to her in fee simple, which was the south line of the tract in controversy, thus excluding from her enclosure the strip two poles wide, or nearly that amount, and that she never actually used the land for a road. The evidence of Doctor Mather, her husband, shows that she had no use for the roadway, but contemplated laying the land out into town lots at some time.
The law is well settled that mere non-user of a right-of-way granted by deed does not constitute an abandonment of the right. In Wasliburne on Easements, p. 717, tbe author says :
'.‘If the easement has been acquired by deed, no length of time of mere non-user will operate to impair or defeat the right. Nothing short of a use by the owner of the premises over which it was granted, which is ad*93 verse to tlie enjoyment of such easement by the owner thereof for the space of time long enough to create a prescriptive right, will destroy the right granted.”
So in Day v. Walden, 46 Mich. 575" court="Mich." date_filed="1881-10-12" href="https://app.midpage.ai/document/day-v-walden-7930420?utm_source=webapp" opinion_id="7930420">46 Mich. 575, Judge Cooley, delivering the opinion of the court, says :
“The right to the easement was not lost by the mere neglect to assert, use and enjoy it for the period of 20 years. There is no doubt of this upon the authorities. The easement was created by grant as an appurtenance to the mill; and there were no conditions or limitations attached which rendered its use necessary to its continuance. The grant was perpetual, and without conditions; and therefore the privilege granted would continue indefinitely whether the grantee did or did not avail himself of it. An accepted grant cannot be waived or abandoned, and the neglect of the grantee to enjoy the easement would be no more significant in its bearing upon his rights than the neglect to enjoy the freehold to which the easement was appurtenant.”
To the same effect are Riehle v. Huelings, 38 N. J. Eq. 20 ; Lindeman v. Lindsey, 69 Pa. St. 93.
There is no evidence in the record of any. act of the plaintiffs inconsistent with the right of the defendants and their grantors until the strip was fenced up at the end. Even this could hardly be said to amount to such a hostile assertion of right adverse to the defendants as would set the statute of limitations to running against their deed. The defendants neither had nor claimed to have, by virtue of the deed to Mrs. Mather, the full title to the land. • They were under no obligation to use the easement until they desired to do so, nor were they bound to take any action to protect their rights so long as there was no occupancy of the land inconsistent with them. While the deed from Mrs. Mather to Hoag does not specifically mention the right-of-way, it grants the land and appurtenances
The judgment is reversed, with direction to enter judgment on the special findings and undisputed facts of the case in favor of the defendants.