Taylor v. Gerrish , 59 N.H. 569 ( 1880 )

The defence is placed on two grounds, — first, under a gift from Ladd to Peabody; second, under a right by prescription. The facts found by the referee are, that Ladd, soon after the conveyance to him in 1833, gave Mrs. Peabody the right to the spring if she would dig it out, stone it, and lay a pipe to convey the water to her house. She did dig out the spring, stone it, and lay the pipe, and the water continued to run until 1874, when this controversy arose.

The gift of Ladd to Peabody was a license merely, and did; not and could not convey an easement in the land or in the spring. The right to the spring was an incorporeal right, and could only be created by deed, or by user, under such circumstances and for such a period as to furnish evidence from which it might be inferred that there was a deed. It could not be created by parol, or by writing not under seal. Stevens v. Dennett,51 N.H. 324, 331; Hewlins v. Shippam, 5 B. C. 221, 229; Cocker v. Cowper, 1 Cr. M. R. 418; Gale Wh. 12; Godd. Easem., Bennett's ed., 88. Being a license, it was revoked by the set-off on the execution against Ladd. Harris v. Gillingham, 6 N.H. 9; Carleton v. Redington, 21 N.H. 291, 305; Cowles v. Kidder, 24 N.H. 364, 379; Houston v. Laffee, 46 N.H. 505, 507; Dodge v. McClintock, 47 N.H. 383, 385; Stevens v. Dennett, supra; Blaisdell v. R. R., 51 N.H. 483, 485; Cook v. Stearns, 11 Mass. 533, 538; Drake v. Wells, 11 Allen 141; Godd. Easem., Bennett's ed., 475; Gale Wh. 353; Washb. Easem. 5, 19.

Title by prescription can only be acquired by an adverse, exclusive, uninterrupted use, sufficiently long continued (in this state for twenty years) under a claim of title, and with the knowledge and acquiescence of the owner of the land. It must be under a claim of legal right, and not by consent, permission, or indulgence, and these facts must be proved by the party claiming the easement. Wallace v. Fletcher, 30 N.H. 434, 448: Burnham v. Kempton, 44 N.H. 78, 88; Gilford v. Lake Co., 52 N.H. 262; Sargent v. Ballard, 9 Pick. 251; Smith v. Miller, 11 Gray 145; White v. Chapin, 12 Allen 516; Washb. Easem. 110, 111; Godd. Easem., Bennett's ed., 172; 2 Gr. Ev., s. 539; and authorities passim. From 1833 to 1858, when Ladd parted with his title, the user was permissive, and therefore, down to 1858, neither the defendants nor their grantors had acquired a title by prescription. Whether the user, since 1858, has been such that, if sufficiently long continued, it would have ripened into an easement, we need not consider, for, whatever the use was after that time, it was interrupted in 1874 by the controversy between the parties. It is true that an uninterrupted use for twenty years, unexplained, is evidence from which the jury may find a prescriptive right, but the facts under which the user in this case commenced are a sufficient explanation. The user having been commenced under Ladd's license, if the defendants and their grantors would have had their user adverse, they should have done some unequivocal act showing such intention, but nothing of that character is found.

There is another conclusive answer to the defendants' case. The question whether the defendants, and those under whom they claim, had acquired an easement in the plaintiff's land by long user, was a question of mixed law and fact, and was to be determined by the referee upon evidence. His finding for the plaintiff is a finding that the user by the defendants and their grantors was not of a character to create an easement in the plaintiff's land in their favor. White v. Chapin, supra.

Judgment on the report.

FOSTER, J., did not sit: the others concurred.