11 Pa. Super. 266 | Pa. Super. Ct. | 1899
Opinion bt
This was an action for the obstruction of a way across the defendant’s land. The plaintiff claimed that it was a private
Having failed to establish either of these someivliat inconsistent defenses, the defendant challenges the right of the plaintiff to maintain the action without joinder of his cotenant, and complains that the answers to two of the plaintiff’s points concerning the law, as to the acquisition of a private right of way by adverse use, were erroneous.
The law upon the latter subject is well settled, and was expounded with great clearness by Chief Justice Black in Garrett v. Jackson, 20 Pa. 331. His language so fully meets the question raised by the first assignment of error, that we quote it at length: “ A passage by one man over the land of another, with the special permission of the owner on every occasion of its use, will not raise the presumption of a grant, no matter how often it may occur, nor how long continued. So a license to use a road for a certain defined period, and the enjoyment of it under such license, will give no right after the expiration of the time. But when one uses an easement whenever he sees fit, without asking leave, and without objection, it is adverse, and an uninterrupted adverse enjoyment, for twenty-one years is a title which cannot afterwards be disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant. The owner of the land has the burden of proving that the use of the easement was under some license, indulgence or special contract inconsistent with a claim of right by the other party.” Substantially the same language as to the burden of proof was used by Woodward, J., in Pierce v. Cloud, 42 Pa. 102, and
That a road had existed across the defendant’s land, which the plaintiff and his predecessors in title had traveled uninterruptedly under a claim of right for a period much longer than was required, was practically uncontroverted. At least, we feel justified in saying after a careful perusal of the testimony, that the substantial controversy was not as to whether the use of the road had been adverse or permissive, not indeed as to the existence of a way, but as to the nature of the way, whether public or private. As to such a case, it was perfectly proper to say, that if the defendant expected the jury to find that the enjoyment began in a license for a definite period, it was incumbent on them to allege and prove it. The plaintiff’s tenth point, the affirmance of which is the subject of error, was not happily worded, and standing alone, would be inadequate if not misleading. But read in the light of the evidence, and in connection with the instructions given in the general charge, and the answers to the other points, we cannot say that the affirmance of it was clearly erroneous. These instructions are not conflicting, but explanatory each of the other, and taken together, they give a substantially correct statement of the law applicable to the facts of the case.
The defendant cannot consistently complain of the affirmance of the plaintiff’s ninth point, for in its first point, he, himself, had used the same language in specifying what it was necessary for the plaintiff to prove, to make out his case. “Acquiescence,” as used in this connection, does not denote that the use, on each occasion, was with the avowed consent or special permission of the owner, but merely that he submitted to, and did not resist, the thing acquiesced in; in other words, that the enjoyment was peaceable. Chiefly from his acquiescence arises the presumption that it began pursuant to a full and unqualified grant. Indeed, the opinion has been expressed by eminent authority that the whole law of prescription and the law which governs the presumption or inference of a grant, rests upon acquiescence, and that the various expedients to which courts have resorted for quieting the enjoyment of rights which have not been resisted by the persons against whom they have been exercised, all appear to be based on that principle and no other:
But we need not elaborate nor theorize. The point was drawn in the language of the adjudicated cases and of the textbooks, and needs no further defense: Esling v. Williams, 10 Pa. 126; Workman v. Curran, 89 Pa. 226; Mitchell on Real Estate and Conveyancing in Pennsylvania, 344; 19 Am. & Eng. Ency. of Law, 9.
It is argued with some plausibility that the omission of the defendant on his former appeal, to raise the objection to the nonjoinder of the plaintiff’s cotenant, was a waiver of the right to raise the same objection on a subsequent appeal. We are not prepared, however, to assent to the proposition of counsel as an unvarying rule, nor is it necessary to put the dismissal of the third assignment of error upon that ground. The verdict of the jury has established the fact that there was a private way appurtenant to the plaintiff’s land, and that it was obstructed by the defendant. The plaintiff although not the sole owner was in the sole and exclusive possession of the dominant tenement, and was permitted to recover simply the trifling amount that it cost him to remove the temporary obstruction. He had a right of recovery for the injury to his possession, and the statement, fairly construed, alleges this as the cause of action. Even if it lacked perspicuity it was amendable, of course, to conform to what was actually tried: Kroegher v. McConway Co., 149. Pa. 444. After three trials on the merits, we ought not to be astute on the third appeal, in searching for a variance between the issue raised by the pleadings, and the issue actually tried.
We find no substantial error in the record, and the judgment is affirmed.
