Bennett v. Biddle , 140 Pa. 396 ( 1891 )

Opinion,

Mr. Justice Williams:

The parties to this litigation own adjoining farms. A public road runs on the east side of one of them on which the buildings are located. Another parallel road runs on the west side of the other with the farm buildings upon it. Many years ago these farms were owned by brothers, who passed back and forth across each other’s fields, and kept up a gate in the line fence between the farms, to enable them to pass the more readily. In 1855, one of these farms passed into the hands of a purchaser, who was not a relative; but the occupants of both farms continued to cross from time to time over each other’s fields from one house or road to the other. A few years ago the defendant declined to permit further crossing of her fields, and obstructed such crossing by fences. This action was brought to test her right to do so.

On the trial in the court below, the defendant asked an instruction to the jury that, if they were satisfied from the evidence the travel over the fields began in the intimate relations existing between the two brothers who owned them, it would not be an adverse user by either; and if the successor in title of one of the brothers had permitted and enjoyed the same user, no right would be acquired by mere lapse of time by means of it. The defendant further asked the court to charge, if the jury found the travel by the occupants of these farms over each other’s fields was a matter of mutual accommodation, it was not adverse, and no right would be acquired by reason of it. Both points were refused; and the refusal is now assigned for error.

The question is well settled in cases arising under our statute of limitations that mere possession will not give title, no matter how long continued. There must be an adverse possession to accomplish that result, and the statute will not begin to run in favor of one who entered in subservience to the title of another, until some act is done which destroys the relation. The possession must be hostile, so far as to be independent of, and to that extent adverse to, the title of the' owner: Cooper v. Smith, 9 S. &. R. 26; Tinicum Fishing Co. v. Carter, 61 Pa. 21; Wheeler v. Winn, 53 Pa. 122; Cadwalader v. App, 81 Pa. 194. The same rule applies to a right of way claimed by prescription. The right must not only have been enjoyed without interruption for twenty-one years, but that enjoyment must have been adverse to the rights of the owner of the land, in order to give a title: Okeson v. Patterson, 29 Pa. 22. Where one uses a road over the land of another, without asking leave and without objection, a grant will be presumed; but the presumption may be rebutted, and the user may be shown to have been in subservience to the title of the owner: Garrett v. Jackson, 20 Pa. 331.

If the facts assumed in the points which were negatived by the learned judge of the court below, had been found by the jury, viz., that the travel over these farms began in the intimate relations of the two brothers, who owned and occupied them, and for their mutual accommodation, and was continued, after the title of one of them had passed to others, on the same basis and in the same spirit of mutual accommodation, then we think it clear that the user of neither was adverse to the other, and that no title was acquired by means of it. What the fact was as to the beginning and continuance of the travel between these owners was for the jury. They must determine whether this user has been a friendly exchange of advantages, or whether each has entered and exercised a right of passage adversely to the other. In the latter case only would the lapse of time give title.

Judgment reversed, and venire facias de novo awarded.