Pruitt v. Shafer , 137 Va. 658 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered following opinion of the court:

The questions presented for decision by the assignments of error will be disposed of in their order as stated below.

1. Does the evidence in the cause show that the use which has been had by the plaintiff’s predecessors in title, of the road in question, by the owners of the alleged dominant estate as appurtenant thereto, began and was continued thereafter by the permission, or license, or special indulgence of the respective owners of the alleged servient estate, and not under adverse claim of right?

The question must be answered in the affirmative.

There is no controversy before us over the law of the case, which is, indeed, well settled. The questions which are controverted before us are questions of fact.

There is direct evidence that the use of the road began by the permission of the then owner or owners of the alleged servient estate. There is no evidence, either direct or indirect, to the contrary.

The plaintiff relies upon Williams v. Green, 111 Va. 205, 68 S. E. 253, and other Virginia cases to the same effect. In Williams v. Green, there was no evidence as to the manner in which the use of the ways originated, and the testimony showed the uninterrupted use of the way by the appellant and her predecessors in title for more than forty years and that appellant and h.er family had uninterruptedly and continuously used the way for more than twenty years. This court in that case said this:

“Where a way has been thus used, openly, uninterruptedly, continuously and exclusively for a period of more than twenty years, the origin of the way not being shown, there is presumption of a right or grant from the long acquiescence of the party upon whose land the way is. The presumption of a grant or adverse right is with us prima facie merely, and may be rebutted. Nickols v. Ayler, 5 Leigh (32 Va.) 546; Freld v. Brown, 24 Gratt. (65 Va.) 74; Reid v. Garnett, 101 Va. 47, 43 S. E. 182.

“ ‘In the absence of evidence,’ as was said by the Supreme Court of the State of Pennsylvania, in Worrell v. Rhoads, 2 Wharton 427, 30 Am. Dec. 274, ‘tending to show that the long continued use of the way may be referred to a license, or special indulgence, that is revocable, the conclusion is that it has grown out of a grant by* the owner of the land and has been exercised under a title thus derived. The law favors this conclusion, because it will not presume any man’s acts illegal. It is reasonable to suppose that the owner of the land would not have acquiesced in such enjoyment for a long period when it was to his interest to have interrupted it, unless he felt confident that the party enjoying it had a right and title to it that could not be defeated. And besides seeing that it can work no prejudice to anyone excepting to him who has been guilty of great negligence, to say the least of it, public policy and convenience require that this presumption should be made, in order to promote the public peace and quiet men in their possession.”

But in view of the evidence in the instant case showing that the origin of the use was permissive, the holding just quoted, that there is a presumption of a right or grant, has no application.

Further: As said by this court in Witt v. Creasey, 117 Va. 872, at p. 876, 86 S. E. 128, 129: “An easement will not arise by prescription simply from permission of the owner of the servient estate, no matter how long the permission may continue. Kent v. Dobyns (112 Va. 586, 72 S. E. 139), supra, Jones on Easements, see. 282. And having begun by permission, it will, in the absence of some decisive act on the part of the owner of the dominant estate indicating an adverse and hostile claim, continue to be regarded as permissive, especially when the latter use is in common with its use by others.”

The evidence in the instant cáse shows that the use of the way by Hoge was in common with others. Moreover, the evidence in the instant case fails to show any act whatever by any owner of the alleged dominant estate indicating an adverse or hostile claim, except the testimony of the witness Goolsby, referred to in the statement preceding this opinion, concerning Hoge’s attitude towards Starke while the latter was the owner of the alleged servient estate, and except the claim of right to us© the road made by one of the Markham sons, which was within about three years of the institution of this suit. Starke testified that Hoge never made known to him any such attitude as Goolsby testifies about. Starke’s testimony has been severely criticised in argument for the plaintiff; but his frank admissions and his guarded and qualified statements with respect to what was said between him and Hoge so long ago (there being no one to contradict him if he had been more partisan and more positive and definite in his statements of what he may have said to Hoge, or Hoge to him—Hoge having been long dead), strongly impresses us with the truth of the substance of his testimony, as it doubtless did the court below. We are satisfied that the recollections to which the witness Goolsby testifies are of some utterances which he may have heard Hoge make, which were not made to Starke; which had likely become confused in the memory of the witness, and which as made may have been entirely capable of explanation consistently with the other testimony in the case tending to show that Hoge’s use of the way continued until his death as it began, namely, by permission. Hence, we cannot regard the testimony of Goolsby as establishing any decisive act on the part of Hoge indicating an adverse claim of right to use the way.

Hoge’s use of the way having continued until his death in 1904, and having been explained by the evidence, as we think, as having had its origin in permission, and as having been continued by permission, it is unnecessary for us to deal in detail with the use of the way by the subsequent predecessors in title of the plaintiff ; since the whole of the time from the death of Hoge in 1904 to the institution of this suit in 1919 was less than the prescriptive period of twenty years.

2. Does the evidence show a parol grant of the •easement of the right of way in question to Hoge as appurtenant to the land now owned by the plaintiff, under the holding on that subject of Buckles v. Kennedy Coal Corporation, 134 Va. 1, 114 S. E. 233?

The question must be answered in the negative.

The evidence shows that the use of the way originated in a mere personal privilege given to Hoge by “the Jenkins,” and shows no consideration as emanating “from Hoge therefor. The only parol grant of the easement, if it could be so called, disclosed by the evidence is that made to Hoge by Starke, when the latter became the owner of the servient tenement in 1882. The continuance of that grant was conditioned upon Hoge’s continuing to “keep up the gates and fences,” which he did, according to the preponderance of the evidence, “Until Starke sold the servient estate to the defendant, Shafer, in 1898. According to all the evidence in the •case, neither Hoge nor any of his successors in title '“kept up” the gates or fences after the defendant, Shafer, purchased the servient estate in 1898. The parol grant made by Starke therefore then terminated.

The decree under review will be affirmed.

Affirmed.