Menter v. First Baptist Church , 1909 Mich. LEXIS 781 ( 1909 )

Grant, J.

(after stating the facts). The judge filed a written opinion holding that whatever use was made of defendant’s land by Dr. Wilkins or complainant was a permissive one. He also found that “there is not the least proof that it was founded, or ever has been, on any claim of right to so use it.” Passing over this land to complainant’s lot was very infrequent, and was not by her, but by those from whom she occasionally bought merchandise for her own use. Such driving over the carriageway made and used by defendant did not tend to show an exclusive claim or right in her. The most that can be claimed is that defendant permitted complainant and others to drive through its property for their convenience. Complainant had ample means of access to her house over her own lands. One having ample means of access to his own premises, over his own land, cannot acquire a prescriptive right of way over adjoining lands without asserting his right thereto in some way more hostile and notorious than its occasional use for his own convenience. The law under which such an easement is obtained is not in doubt. It has been stated in a multitude of cases. The question which the courts have had to decide is whether the facts in the particular case are sufficient to establish the easement. We said in Ann Arbor Fruit & Vinegar Co. v. Railroad Co., 136 Mich. 599, 608 (99 N. W. 869, 872, 66 L. R. A. 431):

“We concede that evidence of a notoriously hostile claim and hostile possession is admissible to prove, and that such evidence may in some cases justify the finding of, a -prescriptive right. But this finding rests, in our judgment, upon the assumption that the owner of the servient tenement acquired actual notice of the adverse holding. ”

See, also, Andries v. Railway Co., 105 Mich 557 (63 N. W. 526); Dummer v. Gypsum Co., 153 Mich. 622 (117 N. W. 317); Burnham v. McQuesten, 48 N. H. 446; Chicago, etc., R. Co. v. Johnson, 205 Ill. 598 (68 N. E. 1112). Such actual notice may be determined by the character of the use and occupancy. Such use' and occupancy, however, must be so open, notorious, and hostile as to leave no doubt in the mind of the owner of the land that his rights are invaded in a hostile manner. Permissive use can never ripen into title by prescription. 22 Am. & Eng. Enc. Law (2d Ed.), p. 1202.

The defendant’s church buildings and grounds were occupied upon Sundays, and were generally unoccupied on week days. They were originally surrounded by fences with gates, and also with an entrance through the shed above mentioned. Whether these fences were retained, when the church was remodeled and the grounds graded and seeded, the record does not show. The church authorities had no notice, or reason to believe, that complainant claimed a prescriptive right of way over its property until shortly before this suit was commenced. Such passing over it was not an assertion of a hostile claim, or frequent enough to become notorious. The parties delivering goods to her entered at the same place the worshipers and attendants upon the church entered, and what little passing was done into her lot made no perceptible impression upon the ground. If there were no fences, complainant could not acquire a right of way, granting all the evidence given in her behalf to be true. Kilburn v. Adams, 7 Metc. (Mass.) 33 (39 Am. Dec. 754). Chief Justice Shaw said in that case:

“Such a use [passing over the land by an adjoining proprietor] is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to inclose it, such use is not adverse, and Will not- preclude them from inclosing it, when other views of the interests of the proprietors render it proper to do so.”

If the proprietors of churches, schoolhouses, and other quasi public buildings inclose their grounds and provide unlocked gates for passage, an adjoining proprietor cannot obtain title to a right of way by occasionally passing through the gates and over the inclosed land to his own premises. The same rule applies to grounds thus inclosed as applies to those uninclosed.

On many of the material facts in this case there was a sharp conflict of evidence. The circuit judge saw the witnesses, and they were many. He viewed the premises, and, we think, arrived at the correct conclusion.

The decree is affirmed, with costs.

Blair, O. J., and Moore, McAlvay, and Brooke, JJ., concurred.