Cornett v. Rhudy

• Decision Date: 24 September 1885
• Citation: 80 Va. 710
• Parties: CORNETT v. RHUDY.
• Court: Virginia Supreme Court

80 Va. 710

CORNETT v. RHUDY.

Supreme Court of Appeals of Virginia.

September 24, 1885

Error to judgment of circuit court of Grayson county, rendered on the ___ day of September, 1883, in an action of trespass on the case, wherein the appellant Cornett was plaintiff, and the appellee Rhudy and als. were defendants.

This case was argued at Wytheville, but decided at Staunton. The case is fully stated in the opinion of Judge Lacy.

Robert Crockett, for plaintiff in error.

W H. Bolling, W. R. Terry and Dickenson, for defendants.

OPINION

LACY J.

The plaintiff in error instituted his action of trespass on the case for damages to his lands, caused by the mill-dam of the defendants in error backing the water, and flooding the lands of the plaintiff in error. The declaration sets forth that the defendants in error, on the first day of January, 1879 raised their dam, and flooded the lands of the said plaintiff in error, and on other days, from that time to the institution of the suit, on the 25th day of February, 1879, had caused damage to the plaintiff, & c.

The defendants filed three pleas, not guilty. Not guilty in five years, and that the plaintiff was not the owner of the fee in the land upon which he charged the damages to have been committed; to which the plaintiff objected, which objection was overruled by the court. Subsequently three other pleas were filed without objection. One setting up a right to flood the lands of the plaintiff by prescription. The fifth is of a prescriptive right for ten years; and the sixth is of a title by ancient deed. The plaintiff replied generally to these pleas. At the trial the plaintiff asked for four instructions. The court gave three, and refused the third instruction asked for by the plaintiff. The defendants asked for five instructions, all of which the court gave. And the plaintiff excepted to the ruling of the court rejecting his third instruction and giving the five instructions asked for by the defendants; and his bill of exceptions, setting forth the evidence and the instructions objected to, was duly signed and recorded.

The third instruction of the plaintiff, rejected by the court, is as follows:

" The jury are also instructed, that ten years, the period by the statute limiting the time when any person shall make an entry on or bring an action to recover any land lying west of the Alleghany mountains, where the same in question is situated, does not apply to this action."

The fourth and fifth instructions given by the court, upon the motion of the defendants, are in effect the converse of the third instruction asked for by the plaintiff and refused by the court, to which is added, in the fourth instruction, that in the assessment of damages they are limited in their enquiry to the period set forth in the plaintiff's declaration, as stated above.

The first question upon which we are called to pass, is the question raised by the rejection of the plaintiff's third instruction, and giving to the jury instructions embodying the converse of the proposition therein contained, numbered four and five of the defendant's instructions. That is, that the presumption of the grant of an easement, giving the right to pen back water upon the lands of another, may arise, and the right may be acquired, by user and enjoyment adverse and exclusive in its nature, of the said easement, for the same period of time which would under the statute of limitations raise such presumption as to, and acquire title by possession, to real estate, held during the time and in the manner fixed by law.

The uninterrupted enjoyment of an incorporeal hereditament, for a period beyond the memory of man, is held to furnish a conclusive presumption of a prior grant of that which has been so enjoyed. If this enjoyment has been not only uninterrupted, but exclusive and adverse in its character for the period of twenty years, this has been held at common law as a conclusive presumption of title.

There is no difference in principle whether the subject be a corporeal or an incorporeal hereditament: a grant of land may be as well presumed as the grant of a fishery, or a common, or a way.

But, in regard to the effect of possession alone for a period of time, unaccompanied by other evidence, as affording presumption of title, a difference is introduced by reason of the statute of limitations, between corporeal subjects, such as lands and tenements, and things incorporeal; and it has been held, that a grant of lands, conferring an entire title, cannot be presumed from mere possession alone for any length of time short of that prescribed by the statute of limitations. The reason is, that, with regard to corporeal hereditaments, the statute has made all the provisions which the law deems necessary for quieting possessions, and has thereby taken these cases out of the operation of the common law. Greenleaf Ev. v. 1. Judge Lomax says, upon this subject: " There is besides, a species of common law prescription, which affects incorporeal rights, profits and easements, such as commons, ways, water courses, viz: twenty years undisturbed enjoyment, which is considered as affording at least prima facie evidence of a prescription, or customary right. So of the use of a water course, or of the use of ancient lights; these may be inferred from twenty years exercise of such rights." 2 Lom. Dig. 786.

And while the same high authority asserts, that in Virginia there can be no right claimed by immemorial prescription, according to the doctrines of the English law, still, as we have seen, he recognizes and defines the common law prescription of twenty years as affecting incorporeal rights.

Judge Tucker says, in his Commentaries, " The 17th chapter of Mr. Blackstone's 2nd book being devoted to title by prescription, I shall content myself with merely referring the student to it for his perusal. For we must remember, as every prescription is founded solely on immemorial enjoyment, and as the comparatively recent settlement of the American colonies excludes the idea of such immemorial use, we can have no right by prescription in Virginia: a position in which there seems to be an universal acquiescence among the profession with us." Book 2, 211, T. C.

Mr. Minor, referring to this idea, and citing Littleton and Coke, says the authorities irresistibly show that there may be a title by prescription in Virginia, where the possession has been honest, uninterrupted, adverse and immemorial; and they show, moreover, that a continuance of possession for more than twenty years, if the other circumstances exist, is conclusive proof of immemorial enjoyment. Minor's Inst. p. 494, B. 2.

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