144 P. 568 | Or. | 1914
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. * * Where the use is merely permissive, and not adverse, there is no basis on which a right of way by prescription may rest.”
In the case of Bohrnstedt Co. v. Scharen, 60 Or. 349 (119 Pac. 337), Mr. Justice Moore quotes with approval the following language from Hall v. McLeod, 2 Met. (Ky.), 98 (74 Am. Dec. 400):
“It cannot be admitted that where the proprietor of land has a passway through it for his own use, the mere permissive use of it by other persons for half a century would confer upon them any right to its enjoyment. So long as its use is merely permissive, it confers no right; but the proprietor can prohibit its use or discontinue it altogether at his pleasure. A different doctrine would have a tendency to destroy all neighborhood accommodation in the way of travel; for if it were once understood that a man, by allowing a neighbor to pass through his farm without objection over the passway-which he used himself, would-thereby, after a lapse of 20 or 30 years, confer a right on him to require the passway to be kept open for his benefit and enjoyment, a prohibition against all such travel would immediately ensue.”
It seems that this modus vivendi continued until stock from the defendant’s premises kept breaking into the young orchard of the plaintiff, when it repented him that he had allowed the transit to continue so long, and thereupon he fenced up the right of way, after giving the defendant notice that permission to cross would be withdrawn. Upon the defendant’s persisting in breaking the fence and passing over the land afterward, this suit was commenced. The great preponderance of the testimony is to the effect that the defendant never had more than permission to pass over the land. This would not constitute the adverse user necessary to establish title by prescription, however long continued. It is conceded that he had no title by deed to the right of way. The case is within the principles announced in Parrott v. Stewart, 65
For these reasons, the decree of the Circuit Court must he affirmed. Affirmed.