60 Tenn. 329 | Tenn. | 1872
delivered the opinion of tlie Court.
This is an action brought for alleged trespass on the land of plaintiffs, the object being to contest a right of way claimed by defendant, to pass by a certain road within and upon the land of plaintiffs, which the defendant, in his plea, says he and his servants had the right to use for passing and repassing over the plaintiffs’ close, for a time whereof the memory of man runneth not to the contrary; said way is claimed as the means of passing from the
The question presented for our decision grew out of the testimony presented on the issue tendered by this plea, and the instructions of His Honor, the Circuit Judge, given to the jury, as to the law arising on the same, in his charge.
It will be seen from the plea of defendant that a right to the way in dispute is sought to be established by jurisdiction — that is, by continuous user for such a period as by law will presume a grant.
The first question presented and urged for reversal of the judgment (which was in favor of plaintiffs in the Court below), is the admission of testimony, detailing statements made by John Eerrell, the father of the defendant, and the former husband of Milley Eer-rell, one of the plaintiffs, to the effect that he had not given defendant a right of use, as claimed, and never intended to do so, and other statements of like character. These statements were made in the absence of defendant, and are not brought home to his knowledge in any way.
In the solution of this question, it is proper to bear in mind the fact that the claim of defendant, as presented in his plea, is a right vested in himself, not what his ancestor may have said about it. That this right is sought to be established, as it well may be, by user for such length of time as to raise the pre
We have cited from Mr. Washburne the principle,
The right of way, though not a rvight to or in the land, is included in the terms of our Statute of Frauds: “ ISTo action shall be brought upon any contract for sale of lands, tenements, or hereditaments,” it being clear that such a right, though an incorporeal one, is an hereditament, and as such capable of being transmitted to the heirs of the party owning it. Bouvier’s Law Dict., vol.
The rule of a presumption of a grant from the State has been settled in Tennessee by several cases to be 20
In view of the principles herein before stated, His Honor erred in his charge to the jury, when he told tliem that in order to make out the prescription, the use must have continued for the twenty years, without molestation, hindrance or objection on the part
The portion of the charge of His Honor referred to, taken in connection with his- admission of proof of the statements made by John Ferrell, was clearly calculated to mislead the jury, as they might well have inferred
For these reasons the case must be reversed, and remanded for a new trial.