119 Va. 636 | Va. | 1916
delivered the opinion of the court.
The bill in this case was filed by the appellee, J. M. Updyke, praying for an injunction restraining the defendant, Patton Muncy, from obstructing a certain right of way through his land which the complainant claimed to be entitled to. The court granted a temporary injunction and subsequently, upon the hearing on the merits, entered a final decree perpetuating this injunction, from which decree the defendant, Muncy, has taken this appeal.
Appellant contends that it is not alleged in the bill that the appellee was entitled to a right of way by prescription, and, therefore, that it was error to overrule appellant’s demurrer to the bill and grant the appellee relief upon that ground.
The bill alleges a state of facts which, if proven, show that the complainant was entitled to the right of way by prescription. It was not necessary for him to allege the conclusion of law, that the facts stated constituted a right of way by prescription, in order to • entitle him to a hearing of his case on its merits.
Nor does the record sustain the further contention of appellant that the bill fails to point out the location of the right of way, and that the route established by the decree is uncertain and indefinite. The bill shows that complainant expressly claimed a right to the use of the “old Thompson road;” and alleged an actual use of it by himself for more than ten years, during
There is in the decree an inadvertent error in referring to the map filed with the deposition of J. A. Wag
The record abundantly establishes the claim of the complainant that this “old Thompson road” is á well known and easily designated route that has been in constant and continuous use as a private right of way by the complainant and others, without objection from any source, for much more than twenty years, and that it is a necess'ary convenience to those who use it as an outlet to the public road. Such a use as is shown could indicate nothing less to the owners of the servient estate than that the user was exercising it under a claim of right.
In the case of Williams v. Green, 111 Va. 205, 68 S. E. 253, it is said: “In order to establish a private right of way over the lands of another by prescription, it must appear that the use and enjoyment thereof by the claimant was adverse under a claim of right, exclusive, continuous, uninterrupted and with the knowledge and acquiescence of the owner of the land over which it passes, and that such use has continued for a period of at least twenty years.” It is further held in the ease cited that to constitute an exclusive use does not mean that the plaintiff must be the only one using the way, but exclusive means that the use is a proprietary use and not a use by the public generally. It is further held that when there has been such a use for more than twenty years, the bona fides
From the record in the ease before us, it satisfactorily appears that every requisite of a right of way by prescription laid down in the case cited is met, and there is no evidence that the use was a mere license or that its exercise was ever denied or objected to by any one.
In conclusion, we are of opinion that the decree appealed from, upon the merits of this ease, is plainly right, and must be affirmed after being corrected by substituting the figure “4” for the letter “H” in the description of the right of way as hereinbefore indicated.
Amended and affirmed.