Kunkel v. Ulm

RpSS, J.

There is sufficient evidence to indicate that the public for more than twenty-one years has used the property described as a thoroughfare, and has thereby obtained a prescriptive right to continue to do so. In the absence of definite reclamation by the owners of property used as a public thoroughfare, it is not necessary that , the public, in order to establish a prescriptive right, shall use such way every day or every week, but only that such use shall be so continuous as to fairly indicate an uninterrupted public use. The evidence in this case establishes such uninterrupted use by the public, and the injunction as prayed for in the petition must be granted. There having been public use of the thoroughfare, any claim of private use thereof is excluded, since in order to establish a private right of way, the use of the person claiming same must be exclusive.

The judgment of the court of common pleas granted the injunction as prayed for in the petition with certain exceptions. It is our opinion, and we so hold, that the exceptions were not warranted by the evidence. The judgment of the court of common pleas will be modified, by granting the injunction as prayed for and eliminating the exceptions set forth in the judgment, and, as modified, will be affirmed.

Cushing, PJ, and Hamilton, J, concur.