Plimpton v. Converse, 42 Vt. 712

Plimpton v. Converse

42 Vt. 712 | Vt. | 1870

*716The opinion of the court was delivered by

Steele, J.

The plaintiff claims to own an easement in the nature of a right of way -on the west side of his mill over the defendant’s land. The defendant has erected a barn on this land which obstructs all passage on the west side of the mill. This right of way is claimed by the plaintiff, first, by the force of his deed or grant, and, secondly, by prescription.

I. As to the force of the grant.

1. The plaintiff’s grantor, Baldwin, bought this mill and appurtenances of the defendant. At the time of the purchase the defendant owned all this territory west of the mill. The deed, in terms, conveys the land only as far west as the west side of the mill. If the defendant had himself owned no land west of the mill, but had owned an easement there in the land of another in the nature of a right of way for the uses of the mill, the right of way might have passed with the mill as appurtenant to it. There would be no sound presumption that the defendant, when he sold the mill, intended to retain in himself an easement which would be valueless, except as appurtenant to the mill. But owning the land as he did, his use of it in connection with the mill would not necessarily make it an appurtenance to the mill. One can not be said to hold an easement in his own land. The mere fact, therefore, that the defendant was accustomed to use the land west of the mill for mill purposes, does not give the plaintiff, having-bought the mill without the land, the right so to use it.

2. If the deed of the mill from the defendant to Baldwin had so bounded the purchase that Baldwin would have had no means of ingress and egress to and from his property, except over the defendant’s land, a grant of a right of way across his land would be implied. But in this case the deed, in terms, conveyed all the land on the north side or front of the mill, and between it aud the street. This is a sufficient means of ingress and egress, and the way which is claimed on the west side of the mill is a way of convenience and not of necessity. The only value of it would be to make the mill more accessible from the highway. It is not claimed that there has ever been any way used or needed by the west side to any point in the rear of the mill. From these facts *717we must conclude that no intention to make a grant of a right of way is to be implied from the necessity and situation of the property.

8. Conceding that the evidence tended to prove that there had been a right of way appurtenant to this mill over the defendant’s land prior to the defendant’s purchase of the mill, it ceased to exist when the title of the mill, and of the land west of it, were united in the defendant. If a right of way be appurtenant to close A upon close B, and both closes be united in the same person, the right of way, as well as all other subordinate rights and easements, is extinguished by the unity of possession. 3 Kent, 423, citing Whalley v. Thompson, 1 Bos. & Pul., 371. When, therefore, the defendant conveyed the mill to Baldwin, retaining the land west of it, Baldwin acquired no easement in the land west of it by virtue of such' an easement having been owned by the defendant’s grantor, for that easement was extinguished, and there was nothing in the situation of the property indicating that the parties intended to revive the way, especially in view of the fact that the door was upon the north side of the mill and not upon the west. The very object of the defendant’s purchase of the mill may have been to rid himself of the incumbrance upon his land west of it. The case, as stated, does not clearly show that the ownership of the mill was ever separate from the ownership of the land west of it, until the defendant conveyed it to Baldwin. But assuming that this was so, it would not alter the case. We see then no ground upon which to imply a grant of the right of way from the force of the conveyance from the defendant to Baldwin, particularly in view of the fact that the property is not conveyed by name, but by definite metes and bounds.

We therefore hold that the ruling of the court, that a way passed by force of the deed, was erroneous.

II. We now come to the questions which arise under the plaintiff’s claim, that he has acquired a right of way on the defendant’s land, by prescription, since the two properties were severed in 1847.

1. The burden was upon the plaintiff to establish, by a fair balance of testimony, that he had acquired such a prescriptive *718right. He was bound to show, affirmatively, an adverse continuous user for fifteen years, under a claim of ownership or as of right. In absence of any proof or circumstances indicating the contrary, it-may do to assume that the use is adverse and under a claim of right. But where, as in this case, the nature of the use may leave it doubtful, the space over which the way is claimed being necessarily left open 1o the public for the convenience of the defendant’s own mill, it is for the jury, and not the court, to say whether, upon the proof and circumstances, including tbe nature of the occupation and the situation of the property, tbe plaintiff has made out that his user has been under a claim of right to him- • self adverse to the defendant’s title.

2. Again, the proof disclosed the fact that tbe defendant had several times obstructed the plaintiff’s enjoyment of any way upon this land, by occupying it himself as a place 'o'f deposit for wood, lumber and carriages, so as to materially interrupt any continuous use of it by the plaintiff. Now, these interruptions by tbe defendant may have been merely casual, or even accompanied by acts recognizing a right in the plaintiff. If so, they would not prevent the plaintiff’s use from ripening into a prescriptive right. On the other hand, they may have been in the exercise of the right of ownership on the part of the defendant, under his title. In that case, they would prevent the plaintiff’s user from ripening into a prescriptive right. What is the prima facie presumption ? Clearly not that the defendant’s occupation of his own property was in recognition -of a right whicli did not then exist in the plaintiff. On the contrary, the prima facie presumption is that the defendant’s enjoyment of his own land was an exercise of his right to so enjoy it. This presumption may be rebutted by proof. The burden was, however, upon the plaintiff to rebut it. In other words, the burden was -upon him to show a continuous or uninterrupted use for the requisite length of time. It was for the plaintiff to show that the interruptions by the defendant were consistent with the plaintiff’s claim, and not for the defendant to show that they were inconsistent with it. The pro forma ruling of the county court seems to throw upon the defendant the burden of *719the plaintiff. It assumes that the defendant’s interruptions were insufficient, “ unless the occupancy by the defendant, such as the jury should find from the evidence, had been in the exercise and assertion of a claim of right.” They were sufficient unless the jury found that the defendant’s occupancy was not made in the exercise of a right, but was merely casual, or in recognition of the plaintiff’s supposed right.

The judgment of the county court is reversed, and cause remanded.