Stearns v. Janes , 94 Mass. 582 ( 1866 )

Chapman, J.

The actual use of an easement, as of right, for twenty years without interruption creates the presumption of a grant. Barnes v. Haynes, 13 Gray, 188. Blake v. Everett, 1 Allen, 248. If the use of a way is under a paroi consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right. Ashley v. Ashley, 4 Gray, 197. So an occupation of land under a paroi gift from the owner is an occupation as of right. Sumner v. Stevens, 6 Met. 337. So if under a paroi contract by a tenant in common. Leonard v. Leonard, 10 Mass. 281. In such cases the law presumes, after the lapse of twenty years, that a legal conveyance was made. But the character of the use or occupation depends upon the language used and the manner of the enjoyment. If the language is such as to create only a license or a lease, the enjoyment is regarded as permissive, and not as of right, and no title is acquired by it. Cheever v. Pearson, 16 Pick. 266.

The instructions given to the jury in the present case state this distinction with sufficient clearness, and are correct.

There being no evidence to show that the right of the defendant was conditional and dependent upon his contributing to the expenses of such repairs as the plaintiff should make, the jury were properly instructed that the right was not forfeited by a neglect and refusal to make such contribution.

jExceptions overruled.