62 W. Va. 223 | W. Va. | 1907
The parties plaintiff and defendants own contiguous tracts of land in Greenbrier county, each consisting of about 400
The bill alleges, and the answer denies, that the plaintiff owns a right of way as appurtenant to her farm over a portion of the land of the defendants about three hundred yards in length, passing from the west side of her land down the northern side of Spring Creek a short distance, thence across said creek to intersect the public road leading from Dry Run to Falling Spring; that she and those under whom she claims have used said way for travel by vehicles, hauling, walking and riding for at least thirty-five years prior to the institution of this suit, continuously uninterruptedly and adversely, without obstruction or permission from any one; that it is the only practicable way she has for travel from said farm to the public road; that within the past few months the defendants have caused said right of way to be ploughed up and fence posts to be set in the ground across the same for the purpose of completely obstructing it; and she prays for an injunction and for general relief.
It has been held by this Court that such a right of way may be acquired by grant express or implied, or by prescription; that a private right of way maybe acquired by prescription by the visible, continuous and uninterrupted use thereof for twenty years under a - Iona, fide claim of right. Boyd v. Woolwine, 40 W. Va. 283; Rogerson v. Shepherd, 33 W. Va. 307. To the same effect are Stokes v. Appomatox Co., 3 Leigh 318; Coalter v. Hunter, 4 Rand. 858. In Wooldridge v. Coughlin, 46 W. Va. 345, this Court held that the use of a private way for ten years with the acquiescence of the owner will confer a right thereto unless denied; that such user is without more taken to be with his acquiescence and knowledge, and prima faeie gives the right; but that if it appears that the user is against his protest and he denies the right, it can not become vested from time of
Some confusion may arise from the language used in our decisions as to the time required to establish title to .a way by prescription. In Boyd v. Woolwine, supra, it is held to be twenty years; but in Wooldridge v. Coughlin; supra, ten years. The natural inquiry is, why this difference, and what is the time essential ? It is evident, from the authorities cited, that the court was referring in the formér case to the common-law rule, and in the latter to our present statute of limitations. “By judicial construction an adverse user of an easement for the period mentioned in the statutes (of limitations), as they were passed from time to time, became evidence of a prescriptive right. ’ ’ Jones Easem., 1 section 161; Railroad Co. v. McFarlan, 43 N. J. L. 605, 617. “Such adverse user must have existed for a period equal at least to that prescribed by the statute of limitations for acquiring title to land by adverse possession.” Jones Easem. section 164. In Lucas v. Turnpike Co., 36 W. Va. 427, 437, the Court quotes with apparent approval Goddard on Easements: “ Without minutely stating here the local statutes of limitations as to adverse user, it may be safely asserted that no less period will suffice, and no greater will be required, in fixing the requisite length of enjoyment to gain' a right to an easement in land by prescription than to acquire the land itself by adverse occupation. This element of duration is therefore comparatively simple.”
What is the nature of this presumption of title arising from such use of another’s land, is a question about which there
But this Court, in its decisions above referred to, and the court of Virginia seem committed to the doctrine that such user for the statutorjr period raises only a prima facie presumption of a grant which may be repelled. Judge BRan-non in Wooldridge v. Coughlin, supra, says: “The flight of the long time requisite to vest the right under the old law afforded a conclusive presumption that there had been an express grant of the easement, its evidence lost by
The test of our decisions seem to be that the use must bo visible, continuous and uninterrupted for the statutory period, under a bona fide claim of right. We may inquire, what is such bona fi.de claim of right? In Eells v. Railroad Co., 49 W. Va. 65, 69, it is indicated that such right may originate and have its commencement in trespass. In Garrett Y. Jackson, supra, it is said that passage by one over land of another, with special permission of the owner on every occasion, will not raise the presumption of a grant, no matter how often it may occur or how long continued; but that use of an easement at pleasure, without leave or objection, is adverse, and if uninterrupted for twenty-one years gives indisputable title. In Worrall v. Rhoads, 2 Whart. 427, it is said: “ In the absence of evidence tending to show that such long-continued use of the way may be referred to a license, or other special indulgence that is either revocable or terminable, the conclusion is that it has grown out of a grant by the owner of the land, and has been exercised under a title thus derived; the law favors this conclusion, because it will not presume any man’s act to be illegal. It is also reasonable to suppose that the owner of the land would not have acquiesced in such enjoyment for so long a period, when it was his interest to have interrupted it, unless he felt conscious that the party enjoying it had a right and a title to it that could and ought not to be defeated. And, besides, seeing it can work no prejudice to any one excepting to him who has been guilty of great negligence, to say the least of it, public policy and convenience require that this presump.tion should be made, in order to promote the public peace and quiet men in their possession.” Whenever therefore there has been such use for a long period, the bona fides of the claim of right is established, and the owAer of the servient estate must rebut the presumption of right, by showing
It is conceded by the defendants here that the plaintiff and her predecessors have used a way over their land, though with some Agnation, continuously for more than thirty-five years; but they combat the presumption of right upon three different grounds. First, they claim that prior to the civil war their land over which the way is claimed was enclosed by fence and cultivated; that prior to that time the owner of the plaintiff’s land used the creek bed as a right of way. But this does not account for the subsequent use, nor defeat the present claim. That during the war the fences were torn down and the land thrown out into the common and traveled over by the owners of plaintiff’s land and others, is no sufficient defense toiler claim of right. In Worrall v. Rhoads, supra, the supreme court of Pennsylvania says that ‘ ‘there seems to be no reason for making any distinction between the legal effect of a person occupying for the space of twenty-one years a way over the clear land of another which is enclosed by a visible fence, and his clear or woodland that is unenclosed or enclosed merely by an ideal one; for ,all are considered as enclosed by the law, and the owner is entitled to be protected in the quiet, exclusive and undisturbed enjoyment of the latter description of land as much and to as great extent as in that of the former. * * * Such an occupation of a way over either is equally opposed to the absolute right and dominion of the owner over his land.” And ini Jones on Easem., section 291, the author says: Such an easement may as well be exercised over an open and uncultivated field as upon one substantially enclosed and usually cultivated. Indeed, enclosure and cultivation would most likely be derogatory to the free exercise of a right of way.”
Second, an attempt is made to show that such use of defendants’ land was permissive, for the accommodation of the plaintiff and those who preceded her; but the evidence is entirely wanting ,of any proof of such permission. The bill alleges continuous, uninterrupted and adverse use without any obstruction or permission. The defendants in their answers say such use was not under any claim of an ease-
Third, the defense is made that the way over of the defendants’ land was not confined to any one particular route, and no defined and exclusive way was acquired. There was evidence showing occasional use of the creek bottom; that occasionally the plaintiff and her predecessors varied somewhat from the usual and beaten path; that at the public road they made short turns; that at one point on the way there was a slough and mud hole in the road, and that to avoid the mud the plaintiff traveled around them. But with all this evidence, the court found, upon the uncóntradicted testimony considered with that which was conflicting, that the plaintiff had acquired and was entitled to a right of way over defendants’ land as set out by definite description in the decree of the court.- We can not say this finding was contrary to the law and the evidence. Jones on Easem., section 269, says: “A right of way may be acquired by user, though between the termini the person claiming the right has at different times taken several different routes to avoid muddy and worn places in the route previously used. Such temporary variance of the way does not destroy it,” TheVe was evidence in this case that other persons besides the plaintiff used different routes in crossing defendants’land. Jones says, same section: “To show that one claiming a right of way by prescription had not confined himself to a definite route, it is not competent to prove that other persons had gone over the land in different directions,
For the reasons stated, we affirm the decree of the circuit court.
A firmed.