88 W. Va. 376 | W. Va. | 1921
• The reasons assigned in the petition of the defendant in the suit for reversal of the decree granting the prayer of the bill are: The refusal to sustain the demurrer to the bill; the adjudication of an indefeasible title by prescription to an easement of way over defendant’s land; and if any such right existed, the establishment of one having a width sufficient
The land owned by Mrs. Foreman, one of the plaintiffs, she acquired by descent from her father, John Small, and he from the heirs of Beuben Spencer by deed, and Spencer from Joseph T. Leavitt, also by deed in 1848. ' The Small land adjoins the land of appellant, the title to which he acquired from the same remote source, though it did not vest in him until the year 1909 by deed of Mrs. Cottingham Their familiarity with the surrounding circumstances qualified them to speak intelligently and accurately respecting the existence of the controverted roadway, as they saw and knew it many years before appellant’s purchase of the tract owned by him. The road was where it now is, they say, when they first became acquainted with Small and Whitlatch. They knew its location and the constant use made of it during the time of the proprietorship of the successive owners after Spencer, whom they did not know and never saw. Their testimony was unshaken when tested by cross-examination, and there was no other attempt to impeach their veracity or contradict their testimony. Besides, the witnesses who spoke for appellant fully and' completely corroborate the facts proved by appellees respecting the long and uninterrupted user of the easement through Greenburg’s land. The statement of appellant himself is emphatic upon that question, and by his testimony he
The road in question extends for part of its length along the common line of both properties and for the remainder of the distance on appellant's land. Both tracts are inclosed and the road itself burdened or obstructed by gates or bars and has been used in that condition for many years. Presumptively therefore it is a private way. Roberts v Ward, 85 W. Va. 474. As in most cases of this character, there is no proof that express permission to use it was ever requested by or granted to appellees, but they and their predecessors in title have used it for more than fifty years, with the acquiescence of the defendant and those through whom he derived his title, and without any objection on the part of any of them until the year 1919, when a dispute arose with respect to a stile over the common fence. What appellant relies on as constituting grants of permission amounted to no more than' mere acquiescence and silence on the part of the owners of the servient tract. User of such character is presumptively adverse to the servient owner and enjoyed under a bona fide claim of right, and when continued for a period of ten years, in the absence of circumstances altering its character, ripens into perfect title to an easement by prescription. Roberts v. Ward, 85 W. Va. 474; Staggers v. Hines, 87 W. Va. 65, 104 S. E. 768; see also Walton v. Knight, 62 W. Va. 223; Hawkins v. Conner, 75 W. Va. 220.
But appellant insists that as he also has used the way, when necessary and convenient, as a means of access to and from various portions of his farm for agricultural and other like purposes, and jointly with appellees as an outlet to the county road, such promischous user precludes appellees from setting up a right of way adverse to him; in other words, that a joint use excludes the possibility of acquiring an easement by prescription under an adverse claim of right. In response to such
Though appellant’s right of ownership of the tract is now subject to the dominant right of appellees to use the way across it, yet the former may enjoy the benefit of his land and of the road, notwithstanding the right of the latter therein. The only restriction imposed in such cases is that the use of the servient owner must be reasonable and such as will 'not impair or injure the easement or interfere with its enjoyment by the dominant owner. 19 C. J. tit. Easements, § 226. And the latter should recognize and respect the corresponding rights of the servient owner, by exercising reasonable care in his use of the road so as not to injure or interfere with the due enjoyment and cultivation of the property over which the road extends, closing after him the gates which have long been in use for the purpose of preventing the trespass or .straying of cattle and other animals.
That part of the decree requiring the way so acquired by
Finding no substantial error, we afirm the decree.
Affirmed.