132 P. 523 | Or. | 1913
delivered the opinion of the court.
The adverse use which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. As in the case of adverse possession, it must be continued for a long period; it must be adverse, under a claim of right, exclusive, continuous, uninterrupted and with the knowledge and acquiescence of the owner of the estate .out of which the easement is claimed: 22 Am. & Eng. Ency. of Law (2 ed.) 1192; Coburn v. San Mateo County (C. C.), 75 Fed. 520; Shellhouse v. State, 110 Ind. 509 (11 N. E. 484); City of Topeka v. Cowee, 48 Kan. 345 (29 Pac. 560, 563). Where the use is merely permissive, and not adverse, there is no basis on which a right of way by prescription may rest: Elliott (2 ed.), § 175; Engle v. Hunt, 50 Neb. 358 (69 N. W. 970-972); Town of Brushy Mound v. McClintock, 150 Ill. 129 (36 N. E. 976, 977).
All that would have been necessary for Stewart or subsequent owners to have done to have changed the condition as to travel would have been to inclose the land. This would not have conflicted with any authority exercised or claimed by the municipal authorities. The city has not made out a case coming within the well-defined rules governing a prescriptive easement as announced and adhered to by this court. This disposes pf the second contention of defendant.
The decree of the lower court was right, and it is affirmed. Affirmed.