66 A. 121 | N.H. | 1907
The evidence of adverse possession is not sufficient to show that a prescriptive right to the easement accrued before 1850; for up to that time for many years both places were owned by the same person. One cannot gain a title by prescription in his own land. Stevens v. Dennett,
The defendant's position is, that Mrs. McCollister entered into the enjoyment of the water-easement in question under a claim of right, which was inconsistent with a revocable license and adverse to the title of Willard, who then owned the servient estate; and that she persisted in that claim, in connection with her undisturbed possession, for more than twenty years. If the evidence is sufficient in law to authorize the jury to find the necessary facts involved in the defendant's position, the court erred in directing a verdict for the plaintiff, though the burden of proving title by adverse possession was upon the defendant.
It is argued in behalf of the plaintiff, that if the evidence authorizes an inference of fact that there was a parol grant of the spring or its use, it was in law merely a revocable license, which necessarily measures the extent of the grantee's claim and proves that it was not of an adverse character. Taylor v. Gerrish,
In the present case the question is whether the defendant adduced evidence sufficient to support a verdict in her favor. It is insisted by the plaintiff that Mrs. McCollister's testimony does not tend to show that she ever claimed to own the spring, or that Willard ever had notice that she made such a claim. She testified, in substance, that Willard gave her permission to dig the well and a perfect right to use the water at the well. Whether the parties intended that Mrs. McCollister should thereby enter and use the water as an owner or as a tenant at sufferance, is not, clear; the duration or extent of the right given is not defined but the inconclusiveness of her testimony does not lead to the result that, when weighed in connection with the circumstances, attending the transaction, it would not warrant a finding that she entered, when she dug the well, claiming to be the owner of it, with the knowledge of Willard. If that is found to be the fact, her continued occupation for more than twenty years, without objection or interruption by Willard or his grantees, would perfect. her prescriptive title. His knowledge of her claim need not be proved by actual notice, but may be inferred from the circumstances attending the original transaction. No reason is apparent why one may not as well claim to be the owner of land in his possession under a parol gift, as under a deed which for some defect in execution conveys no title. In both cases it might held that the occupant was in law merely a tenant at sufferance; but that conclusion of law would not prevent his claiming to be the owner in the former case, any more than it would have that effect in the latter case. And when, as in this case, the parties employ language whose meaning is doubtful unless considered in connection with all the attendant circumstances, the question of their understanding of its effect, or their mutual claims in regard to it, should obviously be left to the jury. A finding upon that issue does not qualify or contradict the legal effect of the transaction at the time, but it may establish the original fact from which title by prescription results, in the absence of any assertion by the, grantor of his legal right during the prescribed period of twenty years. The ruling of the court was, therefore, incorrect, and the verdict must be set aside.
Exception sustained.
All concurred. *197