Snowden v. . Bell
75 S.E. 721
N.C.
1912
Check Treatment
Allen, J.

-It is well established in tbis State that tbe right to a private way may be acquired by a continuous adverse use for twenty years, and that a mere user for tbe required period is not sufficient to confer the right. Ingraham v. Hough, 46 N. C., 43; Mebane v. Patrick, 46 N. C., 23; Ray v. Lipscomb, 48 N. C., 186; Boyden v. Achenbach, 79 N. C., 539, and same case, 86 N. C., 397.

In tbe last case cited, the doctrine is well stated as follows: “It would be unreasonable to deduce from tbe owner’s quiet acquiescence, a simple act of neighborhood courtesy, in tbe use of a way convenient to others and not injurious to himself, over land unimproved or in woods, consequences so seriously detracting from tbe value of tbe land thus used, and compel him needlessly to interpose and prevent tbe enjoyment of tbe privilege in order to tbe preservation of tbe right of property unimpaired. And so it is declared in Mebane v. Patrick, 1 Jones, 23, and reiterated in Smith v. Bennett, ib., 372, by tbe late Chief Justice, in bis comments upon tbe charge that if tbe plaintiff bad continuously, and without interruption, used and enjoyed tbe way for more than twenty years, be was entitled to recover. He says: 'The charge is correct as far as it goes; but it does not go far enough. There is another and very essential requisite, in order to raise tbe presumption of a grant. The user must be adverse and as of right.’ Again, in Ray v. Lipscomb, 3 Jones, 385, referring to those adjudications, be says: ‘These cases, as it seems to us, put tbe doctrine of presumption *500 of a right of way from user on its true basis; and as was said in the argument, considering the state of things among us for many years past in regard to a neighbor’s passing on the unin-closed land of another, either on horseback or with his wagon, any other conclusion would have resulted in great and general inconvenience.’ There must, then, be some evidence accompanying the user, giving it a hostile character and repelling the inference that it is permissive and with the owner’s consent, to create the easement by prescription and impose the burden upon the land.”

The term adverse user or possession implies a user or possession that is not only under a claim of right, but that it is open and of such character that the true owner may have notice of the claim; and this may be proven by circumstances as well as by direct evidence.

In Parker v. Banks, 79 N. C., 485, the Court, speaking of an adverse possession, says: “Mr. Angel says ‘that the clearest and most comprehensive definition of a disseizin and adverse possession is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right. The claim must be adverse and accompanied by such an invasion of the rights of the opposite party as to give him a cause of action. It is the occupation with an intent to claim against the true owner which renders the entry and possession adverse; and it is the settled doctrine that this question of adverse possession, as one of intention, ought to be found by the jury, or in some other way ascertained as an essential fact, without which the quality of the possession cannot be determined.”

Applying these principles, we are of opinion that the plaintiff introduced evidence of an adverse user for more than twenty years, which entitled him to have his case submitted to the jury, but that it was not of such conclusive character as to warrant a peremptory instruction in favor of the plaintiff.

A user for more than forty years is clearly shown, but much of the evidence is consistent with the contention that it was not hostile and adverse, but permissive, and the evidence of notice to the defendant that it was under a claim of right was entirely circumstantial.

*501 When a fact is to be proven by circumstantial evidence, tbe 'finding of tbe jury is not dependent altogether upon belief in tbe truth of tbe evidence, as tbe jurors must not only believe tbe witnesses, but must also draw from their testimony tbe inferences arising from the facts proven.

There is also evidence, although not clearly stated, that tbe defendant objected to one of the tenants using the way, and that he required the plaintiff to execute a bond to him to repair any injuries caused by hauling timber over it.

We think it was the duty of his Honor to explain to tbe jury tbe meaning of tbe term adverse user, and to instruct them to answer the issue in tbe affirmative if they found, by tbe greater weight of the evidence, there had been such user for twenty years, and, otherwise, to answer tbe issue in the negative, and that there was error in tbe instruction given.

New trial.