Loehr v. Cochran , 14 Mich. App. 345 ( 1968 )

Per Curiam.

Plaintiffs Henry Loehr and Margaret Loehr sought to establish in the trial court a non-exclusive easement for purposes of ingress and egress across the land of defendant, John R. Cochran, Sr., and also against defendant Paul Hohrun.

The facts regarding usage of the roadway in question are undisputed. There was clear evidence of the existence and use of the roadway dating hack at least to 1916, and according to the testimony of William Plagstead, it may date back prior to the turn of the century. At all times until the roadway was barricaded in 1965, use of it was open, notorious and continuous. This was not disputed by defendants.

The trial court concluded that there was enough evidence of open use to warrant a finding that the deed held by defendant, insofar as it conflicted with plaintiffs’ easement, constituted a cloud against plaintiffs’ easement. The court ordered that defendant Cochran’s deed was to be set aside and declared null and void with respect to plaintiffs’ easement, further ordering defendant Cochran to deliver a quit claim of said easement to plaintiffs. The trial court declared plaintiffs to be the owner of the right of way easement, in common with others against defendants.

The issue raised for review is: Have plaintiffs established a prescriptive easement as a result of over 50 years of open, continuous and uninterrupted passage across defendant Cochran’s property?

Defendants contend that plaintiffs failed to prove the basic elements of adverse use in order to permit the finding of a prescriptive easement. They claim there was no showing of hostility by plaintiffs.

On the other hand, plaintiffs argue that defendants presented no proof that the use of the disputed roadway was originally taken by permission, and therefore the presumption runs to plaintiffs’ benefit that their use was hostile to defendants’ ownership. The presumption claimed by plaintiffs was first stated in Berkey & Gay Furniture Co. v. Valley City Milling Co. (1916), 194 Mich 234, and subsequently followed in many cases. The essence of this presumption is that long-standing use of another’s property, e.g., over 50 years, shifts the burden to the defendant-owner, to show the use was permissive. If the presumption is not rebutted, the adverse user obtains a prescriptive right to travel over the defendant-owner’s land.

This Court finds Berkey & Gay Furniture Co. v. Valley City Milling Co., supra, and subsequent case law^* determinative of the issue herein. Therein at p 242, Mr. Justice Bbookb stated:

“It has been held that the open, notorious, continuous, and adverse use across the land of another from a residence or place of business to a public road for more than 20 years affords a conclusive presumption of a written grant of such way (Clement v. Bettle [1901], 65 NJ Law 675 [48 A 567]), and that when the passway has been used for something like a half century, it is unnecessary to show by positive testimony that the use was claimed as a matter of right, but that after such user the burden is on the plaintiff to show that the use was only permissive (Magruder v. Potter [1904], 25 Ky Law Rep 1336 [77 SW 919]). See, also, Chenault v. Gravitt (1905), 27 Ky Law Rep 403 (85 SW 184); Wathen v. Howard (1905), 27 Ky Law Rep 7 (84 SW 303). We are of opinion that the defendant not only failed to show that the use of said way by the plaintiffs was permissive, but that the plaintiffs introduced testimony which convinces us that such use was enjoyed by the plaintiffs and their grantors as a matter of right.”

The rule is stated in Annotation, 170 ALR 776, 779, as follows:

“Upon its appearing that a servitude has been enjoyed during the period required for prescription, openly, continuously and uninterruptedly, a presumption arises, in the absence of any other explanation, that the user was adverse and under a claim of right. The burden is then upon the owner of the soil to show that the use was permissive, or otherwise that it was not adverse.”

Affirmed. Costs to plaintiffs.

Holbrook, P. J., and T. G. Kavanagh and McIntyre, JJ., concurred.

* See Haab v. Moorman (1952), 332 Mich 126, 144, 145, and eases cited therein.