32 N.J. Eq. 578 | New York Court of Chancery | 1880
Isaac Shivers, in 1848, was the owner of a tract of land, a farm, in Delaware township, in Camden county, fronting on the Marlton turnpike. There were two sets of buildings
The existence of the easement is not denied, and it is proved by the testimony on the part of the defendants, as well as that adduced by the complainant. The bill states that the lane or road has been, for upwards of twenty years, used by the complainant and the former owners and occupants of his farm and premises, to pass and repass to and from his farm with carriages, horses, cattle &c., and that
It appears, clearly and unquestionably, that, from August, 1848, to September, 1876, a period of over twenty-eight years, the complainant and his grantor enjoyed the free and unobstructed use of the lane between the division line and the gate, at the junction of the lane with the turnpike, as appurtenant to the complainant’s farm, and that it was their only way to the turnpike. It also appears that, at .the latter date, the defendants, without the complainant’s consent, and against his will, erected the gate complained of, and subse quently maintained it by an exhibition of forcible and vio lent resistance of the complainant when he attempted to remove it. The gate is, manifestly, from the evidence, a nuisance. It is at the top of a hill which descends to the turnpike, and it is especially annoying to be compelled to stop, with a loaded wagon, to open it in going up, and, in such case, it causes a special strain on the horses, to start the wagon again. William A. Shivers, a son of the complainant, testifies that, at times, although the gate was open when the complainant’s people entered the lane to go up, some one would come out and shut it, so as to compel them to stop and open it.
The' complainant’s title, by prescription, to the free and unobstructed use of the.way (except as to the gate at the turnpike) at the time of the erection of the gate complained of, is established beyond a peradventure. A right of way, acquired by prescription, is commensurate with and measured by the use, and the owner-of the land has no right to do anything which will hinder or obstruct such use. The complainant, therefore, is entitled to the aid .of.this court in the premises, to secure to him lawful enjoyment of the easement, free from the obstruction of any gate between the gate at the division line and that at the turnpike.
The injunction will be made perpetual, with costs.