39 Del. Ch. 148 | New York Court of Chancery | 1960
Plaintiffs in September 1958 completed the purchase of a plot of ground in Lewes having an area of some twenty-five thousand square feet at the rear of lands owned by
Plaintiffs allege in their complaint that defendants, commencing in October 1958, have committed daily acts of trespass on plaintiffs’ land, such trespasses consisting of driving a motor vehicle across a strip of land some forty feet in width at the northeasterly end of plaintiffs’ lot and in preparing to install a permanent paved road across such strip to a garage owned by the defendant, Leota Bertrand, just beyond the claimed northwesterly boundary of plaintiffs’ lot. The complaint sought injunctive relief against such alleged continuing trespasses as well as the further removal of trees, hedges and other vegetation growing on property claimed to be owned by plaintiffs as well as damages. Defendants’ purpose in crossing the strip in question has been to reach a two car garage admittedly situate on their lands, no other means of access to which by motor car now exists. Defendants claim they have a right to make use of this strip because of what they contend has been the continuous, adverse and open use by them and their predecessor occupants of the Bertrand homestead of such right of way over a period of twenty years and upwards.
On May 20, 1959, this Court entered a preliminary injunction restraining defendants from making any further changes in the area being used by them for a right of way but permitting them to continue to use the area in question for the sole purpose of entering and leaving their garage pending final hearing. The case having come on for trial, the matter now for decision is whether or not plaintiffs are entitled to a permanent injunction against defendants’ alleged continuing trespasses.
First of all, I am satisfied that plaintiffs, having completed the purchase of their lot from one Rose E. Bradley in September 1958, became the owners of a plot of land in Lewes lying southwesterly of Pilottown Road, having dimensions of approximately one hundred feet by two hundred fifty feet and adjoining lands now or formerly of
Turning to the facts on which defendants base their claim to a prescriptive right, it appears that in the late 1920’s Elmer Bertrand, a brother-in-law of Mrs. Leota Bertrand and uncle of Mrs. Sheehan, who then resided in the Bertrand homestead, built the garage which has become the source of the present litigation. Dr. Bertrand, as a physician going about his daily rounds, then proceeded to make use of such garage by crossing lands to the south and east of it along the Counselman boundary, such lands at the time being owned by the Maryland, Delaware and Virginia Railroad Company. Such regular and constant use, which involved circumventing a railway turntable lying southeast of the Counselman line by driving close to such line, was made without the permission of the then landowner. Nonetheless, I am satisfied that Doctor Bertrand, who at the time was an active practitioner, continued to operate his motor vehicle over what later became lands of Rose Bradley and are now lands of the plaintiffs over a period of some twelve years or more until 1939 when he surrendered possession of the Betrand homestead to his sister-in-law.
While Mrs. Leota Bertrand came to the homestead shortly thereafter for summer visits during the years from 1939 to 1946 and lived there continuously from 1946 until 1950, she did not, according to her own testimony, ever own a motor vehicle during that period. Furthermore, from 1950 until 1954, when her son returned from a long period of hospitalization as a result of service incurred wounds, apparently neither Mrs. Bertrand nor her children lived in the house. Summer residence was definitely resumed in 1954, but there was no use of the claimed right of way for the purpose of reaching the Betrand garage by motor vehicle until late September, 1958 when the acts complained of were commenced. In fact until such time during the times when Mrs. Sheehan had a motor vehicle in Lewes and resided in the Bertrand homestead, she parked it on Pilottown Road, not attempting to use the garage allegedly because it contained a boat and a large detached motor. In any event she was not keen about crossing a badly kept and wooded yard at night in order to get from the garage to the home.
The applicable law in a case such as this is set forth in the case of Hughes v. Abbott, 32 Del.Ch. 328, 86 A.2d 358, 359 as follows:
“In order for the plaintiffs to establish their legal right by prescription to the use and enjoyment of the right-of-way over defendant’s land, they must show a continuous, uninterrupted and adverse use thereof, by them or those in privity with them, for a period of more than twenty years. There must be no substantial interruption of the continuity of possession and enjoyment. See John v. Stayton, 5 Harr. 448; Pennington v. Lewis, 4 Pennewill*153 447, 56 A. 378; Baynard v. Every Evening Printing Co., 9 Del.Ch. 127, 77 A. 885; Marta v. Trincia, 26 Del.Ch. 94, 22 A.2d 519. However, in order for the use of the right-of-way to be continuous, it was not necessary that plaintiffs use it constantly; they needed only to use it as their needs might require, although they must have used it at such frequent intervals as to give notice to the owner of servient tenement that such a right was being claimed. Stuart v. Johnson, 181 Md. 145, 28 A.2d 837; Jean v. Arseneault, 85 N.H. 72, 153 A. 819.”
Defendants, having failed to present clear and convincing proof of those elements of adverse use required to establish a prescriptive right in lands of another, will be permanently enjoined from committing further trespasses upon the lands of plaintiffs here in issue.
Order on notice.
. Dr. Bertrand’s testimony throws some doubt as to whether the right-of-way claimed by defendants coincides with that used by him up to March, 1939.
. Such closing off was not only an interruption of the previous user but corroborates Mrs. Bradley’s testimony that Dr. Bertrand’s use of the right-of-way from 1936, when Mrs. Bradley became the owner of its fee, was permissive.