Wright v. Freeman , 5 H. & J. 467 ( 1823 )

Dorsey-,- J.-

delivered the opinion of the court. Thiá. case comes before the court on bills of exceptions taken to the' opinions of the county court, pronounced ill the trial of an action-on the case brought in Kent county court by Freeman, the appellee, against 'Wright, the appellant, for obstructing a private right of way, which the plaintiff claimed over the lands- of the defendant. The plaintiff, to establish his-right of way over the lands of the defendant, offered in evidence the record of the proceedings of Kent county court, and afterwards affirmed in the general court, duly authenticated, by which' it appears, that upon the petition- ef Woodland, Freeman and Wilson, the court granted to them* pu-fsuant to the provisions of the act of assembly, entitled, • “An act to declare and ascertain the right of citizens of this state to private roads or ways/’ passed in the year 1785, ch. 49, a right of way over the lands of the defendant. The defendant objected to this record being read in evidence to the jury, but the court permitted it to be read, and the defendant excepted. In support of this exception, it has been urged by the appellant’s counsel, that as the act provides that it shall not be lawful for any person to stop up or change, or in any manner obstruct such private road or way, under the penalty of five pounds current money for every such offence, an action on the case cannot be maintained for the alleged disturbance, but that the penalty inflicted by the act must be sought to be recovered, and that therefore a grant of a private road by the county court was inadmissible evidence under the. pleadings in, this cause. At common law, a private right of way over the lands of another, might be claimed % prescription, grant or necessity, and the-distnrbance of this easement or servitude could only be redressed in damages by an action on the case. The party claiming this incorporeal hereditament could not bring an action of trespass vi et armis, for any interruption or disturbance of it, because he had no estate or interest in the s.oil, but only the right of passing over it. Now the proposition is most true, that wherever the law gives a right, it also gives a remedy for the violation of such right; and it would seem, that the moment the petitioners, or those who represent them, acquired the rigid of way over the lands of the defendant, emanating from the judgment of Kent county court, the common law interposed, and guarded the enjoyment of this privilege, in the same manner, and to the same extent, that it was wont to protect a right of wav acquired in any of the three modes known to the common law. The penalty inflicted by the statute could not be recovered by the parties having a right of way, as the act does not enable them to. sue far it. It is not given as a compensation to the parties aggrieved. The disturbance of the way, for which the penalty is inflicted, is emphatically styled an offence. An offence, against whom? Against the. state in its aggregate capacity. But even supposing that the parties injured would be entitled to sue for the penalty-, still the common law remedy would attach on every interruption, or-disturbance of the right of way. An interest in a private way was known to the common law, and a new legislative- mode of acquiring such right is not the creation of a new right, but only an additional means by which the same-right may-be-acquired. In this view of the case, then, the-penalty given-by the statute can only be considered as a cumulative-remedy.

In the second bill of exceptions, the defendant’s counsel*' prayed the opinion of the court, and' their direction to the ' jury, that if they should believe that the defendant held the locus in quo, or the land over- which the plaintiff now claims a right of way, in his the defendant’s, possession, and has exercised an exclusive right to the same for more than twenty years before the institution of this suit, they must find a verdict for the defendant; which instruction the court refused to give, but did instruct the jury, that more than twenty years adverse possession, and exclusive use of the lands over which the plaintiff claims a right of way, could not be a bar to this action. To which the defendant excepted. This court thinks that there is no error this opinion. The adversajpy possession of the land by Wright, over which the road was laid out, has been relied on by the defendant’s counsel as a complete bar to thq plaintiff’s rights of recovery. It is presumed that by this adversary possession is meant the occupation of the land exclusive of and in opposition to the enjoyment of the. way by those who had acquired the right of using it. Can such a possession be set up as a positive bar to an action brought, to recover damages for the disturbance of the right, of way? There is n.o statute declaring that such a possession shaft amount to a bar. Th.e case does not, unquestionably, fall within the provision of thq statute of Jamas Í, which declares, that no person that has any right or title of entry shall enter but within twenty years next after his right or title shall accrue. This statute applies to lands only, and. Hot to incorporeal hereditaments. The statute of limitation operates as a positive bar in those cases, where it applies, but in all other-cases, if the length of timéis relied on, it must be submitted to the jury as the foundation of presumption. Tims in England (here is no statute of limitation that bars an action on a bond, but there is a time when the jury may presume the debt to have been discharged, as where no part of the interest has been paid within twenty years next after the same was demand-able. See Coiuper, 102,214. Whether the adversary possession, relied on in this case, would have been a sufficient ground' on which the counsel for the defendant might have prayed the court to instruct thejuiy to presume a release, from the parties interested in the road, to the defendant, it would be improper to decide, as that question is not before us. The court are therefore of opinion, that the judgment must be. affirmed on this exception.

We are of opinion, that the court ought to have instructed the jury, as required by the defendant’s counsel in the prayer stated in the third bill of exceptions. That a right of private, way, whether acquired under the principles of the common law, or the statutory provisions of the state, can be extinguished by a release executed by the parties interested in the right of way to the owner of the soil, has not been denied. The question, therefore, is this, can such a release in any case be presumed to have been executed, and if it can, ought not the court to have directed, the jury in this case to presume such release? That an adversary Uaip: of a private way for twenty years is a sufficient ground for the jury to presume a grant of such way is fully established by the case of Campbell vs. Wilson, 3 East, 294. So the enjoyment of lights for twenty years, with the acquiescence of the owner of the fee of the adjoining ground, is such a decisive presumption of a right by grant, or otherwise, unless contradicted or explained, that the jury ought to believe it. The doctrine of presumption in those cases, is founded on the principle of quieting rights which have been peaceably and uninterruptedly enjoyed for a length of time; and therefore, the law in its anxiet/to protect such rights, presumes that they rightfully cpmmepeed in contract. In the case of The Mayor of Kingston upon Hull vs. Horner, Couper, 102, the court directed the jury to presume a grant from the crown, not that the court really thought that á grant hpd been made, because it was pot-probable that a grant should have existed without its being on record, but the fact is presumed for the purpose and from the principle of quieting the possession, If therefore the adversary user of a right of a way over the lands of another for twenty .years, shall be a sufficient foundation to presume that the right originated in grant, it must 'follow, upon every principle, that the non user.of the right may be extinguished, by presuming a release of it for the. purpose of quieting the possession. And the presumption of a release in this case is strongly fortified by the circunir stance, that the parties,' to whom the right of wayinqupsi tion was originally granted, and those claiming under, them, had used another and distinct route over the land of the defendant. We are therefore of opinion, that the court below erred in refusing the prayer, and that they yvould have been warranted in instructing the jury, if they had been required so to do, that they plight and ought to presume a release.

The fourth bill of exceptions presents, this question, Can an action on the ease b:e sustained for obstructions made on the road by the defendant after the time at which the title of the petitioners for the road became vested by the judgment of the general'court, and the payment of damages, although they had not removed the obstructions which existed at the time they acquired their interest? We are of opinion that the defendant subjected himself to an action by multiplying the obstructions, as he thereby not only increased the difficulty of travelling over the road, but necessarily enhanced the expense of opening it. The defendant, by his own act, had no right to impose this additional burthen on the plaintiff. We therefore think that the court below were correct in their opinion expressed ins this bill'of exceptions.

The opinion expressed by the court below, on the prayer stated in the fifth bill of exceptions is, that if the jury believed that the agreement was by parol only, that either: the plaintiff, so far as he was interested, or the defendant, might revoke it. Ey the common law, a private right of way must be created by prescription, (which presupposes a grant,) or by grant, or it must arise by operation of law^ and in such case is generally termed a way of necessity; and in all those cases it can only be. extinguished by a release, or by the union of the land- and the right to the easement, in the same person. So a private way, created by the act of 1785, can only be extinguished- in.the same way. An agreement, therefore, by parol, in the case now under review, could pass no legal right on either, side. It did not operate to extinguish the old right of way,; or ta create a new one, it simply amounted to a license on either side, and as such it m'ght be revoked by either party. The opinion of the court below was therefore correct.

The court reverse the judgment on the third bill of exceptions. ' Tlie opinions in the other bills of exceptions are concurred in. Procedendo awarded.

judgment reversed, &c.