Flora v. . Carbean , 6 Trans. App. 231 ( 1868 )

The proof in regard to which there was really no controversy is ample to show that the father of the defendant, under whom he justified the acts of trespass complained of, had a road leading from his house to the main river road, across the land of the plaintiff, and which he and his family had used, both on foot and with teams, for more than twenty years; that it had from year to year been repaired by the defendant's father and his neighbors, and that it was the only road leading from his farm to the public highway. This use had been uninterrupted for more than twenty years, and was not questioned until the act of the plaintiff in erecting and endeavoring to maintain the fence which obstructed the right of way.

This proof justifies the finding of the referee, that the defendant had acquired a right of way across the plaintiff's lot, and is entirely within the principles decided in the case ofMiller v. Garbeck (8 Barb. 153). All that is necessary to establish the right, is, that the use should be continuous, uninterrupted and exclusive, that is, under a claim of right, with the knowledge and acquiescence of the owner. The counsel for the appellant insists that the referee should have found in so many words, that there was an uninterrupted adverse use for twenty years. But to this the reply is, that the uninterrupted use and enjoyment of a right of private way on the land of another, becomes an adverse enjoyment, and is sufficient to raise a presumption of a grant. The use of an easement for twenty years, unexplained, will be presumed to be under a claim or assertion of right, and adverse, and not by the leave or favor of the owner. (See case cited, supra, and Gayetly v. Bethune,14 Mass. 53.)

It is claimed by the appellant, that the legal conclusion of the referee, that it is not necessary that the party claiming the right of way should claim it under a grant, was erroneous. Taken as an abstract proposition, this is undoubtedly an error. It is quite clear, I think, that what the referee intended to say was, that it was not necessary for the defendant to prove a grant by the production of a conveyance or paper title. His conclusion obviously was, that the right might be claimed and maintained by prescription, without otherwise having a grant, since the doctrine of prescription is founded on the presumption of a grant, and obviates the necessity of actual proof of it. This prescriptive right is clearly and necessarily the ground of his judgment; and the finding of this proposition is not in conflict with his general conclusion, that the defendant had acquired, by means of the use, which he has fully set forth in his findings of fact, the right of way which constituted the defense of the defendant's action.

There was no sufficient proof of a license to defendant to pass on this land from any party that had ever owned the land. All there was in the proof on this subject, was drawn out upon the cross-examination of the defendant, who, it will be remembered, is the son of the party who claimed the easement, and is merely to the effect that the plaintiff occupied the land on the Van Rensselaer tract or gore, and he understood Van Rensselaer owned the land, and had heard his father say he had permission from Van Ransselaer or his agent to travel over this land. I concur in the opinion of the court below, that this proof was quite insufficient to show a license. It should have been proved that Van Rensselaer was the owner, and the nature of the license, how far it extended, what kind of travel was permitted, and under what qualifications and restrictions. The proof was of the loosest possible description; and, upon it, the referee would, in my opinion, have been entirely warranted in finding a license revokable in its nature, and actually revoked by the building of the fence. The referee was not requested, so far as appears by the case, to find any such fact, nor is his failure to find it made the ground of any exception on the part of the plaintiffs.

I think the judgment should be affirmed.

Judgment reversed.