Cox v. Forrest

• Decision Date: 29 March 1883
• Parties: SAMUEL N. COX and Llewellyn A. Cox, His Wife v. SAMUEL FORREST.
• Court: Maryland Court of Appeals

60 Md. 74

SAMUEL N. COX and Llewellyn A. Cox, His Wife v. SAMUEL FORREST.

Court of Appeals of Maryland

March 29, 1883

Appeal from the Circuit Court for Charles County.

The case is stated in the opinion of the court.

Exception.--At the trial the plaintiffs offered the three following prayers:

1. If the jury find from the evidence, that the plaintiffs are possessed of the farm described in the declaration as "Part of Pomfret and St. Matthew's," and that they and those claiming under them, have been accustomed, for the more convenient occupation of said farm, to use and enjoy a certain way or road, as described in the declaration over the lands now claimed by the defendant to and from the public highway, or to and from a separate portion of the plaintiffs' land, openly and uninterruptedly for twenty years previous to the obstruction of said way here complained of; then, unless the defendant has proved that such use of said way was, by virtue of license or permission, from him or those under whom he claims, the jury will presume the existence of a right of way over said land in the plaintiffs and if they further find that the defendant obstructed said way, so as to deprive the plaintiffs of the use thereof, they will find a verdict for the plaintiffs, awarding them such damages as the deprivation of said way for the time complained of, and the inconvenience and trouble resulting therefrom, may, in the judgment of the jury, entitle them to.

2. If the jury find from the evidence, that the use of the way in question in this case, has been confined to the plaintiffs those living on their farm and claiming under them, and persons having business with the plaintiffs, and their tenants, this will constitute such an exclusive use as if continued openly and uninterruptedly for twenty years without permission from those owning the land over which the road passed, will warrant the jury in presuming a right of way in the plaintiffs.

3. If the jury find that the persons holding and occupying the farm described in the declaration as "Part of Pomfret and St Matthew's," have ever at any time heretofore used a way or road over the land now claimed by the defendant openly and uninterruptedly for a period of twenty years, either as a means of communication with the public highway, or with a portion of said farm, and that the plaintiffs all were possessed of said farm, and were so possessed at the time of the obstruction complained of, and that the defendant obstructed said way so as to deprive the plaintiffs of the use thereof, then they will find for the plaintiffs, unless they also find that such use of said way was, by express permission of the defendant, or those under whom he claims, or that said way has been abandoned or the use thereof discontinued for a continuous period of twenty years.

The court (Ford, J.,) refused said prayers, and directed the jury as follows:

"If the jury find from the evidence in the case, that the plaintiffs have used the road mentioned in the declaration for the period of twenty years, exclusively, adversely and uninterruptedly, then the plaintiffs are entitled to recover such damages as they may find from the evidence the plaintiffs have sustained by reason of the alleged obstruction; unless they shall further find that the said road was used by the permission of the defendant, or those under whom he claims, or that the said road was enjoyed in common with other citizens of said county."

The plaintiffs excepted, and the verdict and judgment being against them, they appealed.

The cause was argued before Miller, Alvey, Robinson and Irving, JJ.

F. M. Cox and Daniel R. Magruder, for the appellants.

The plaintiffs' first prayer stated such facts as raise a presumption of a right of way, until rebutted. The use as shown from its very nature was adverse, unless the defendant could rebut it by showing the origin of the user to have been by permission or otherwise than as of right. Washburn on Easements, 90, 91, 161; 2 Waite's Actions & Defenses, 701; Cooper v. Smith, 9 S. & R. 26; Goddard on Easements, 134; White v. Chapin, 12 Allen, 516; Garrett v. Jackson, 20 Pa. St. 331; Pierce v. Cloud, 42 Ib. 102; Holcroft v. Heel, 1 Bos. & Pull. 400; Pue v. Pue, 4 Md. Ch. 386; Wright v. Freeman, 5 H. & J. 467; Woolrych on Ways, 19, 20; Casey v. Inloes, 1 Gill, 430, 497; Brown v. Werner, 40 Md. 15.

The plaintiffs' second prayer was proper to prevent the implication, that the user by persons visiting the plaintiffs, and the casual use by others could have any effect to impair the exclusive character of the plaintiffs' right.

It properly presented the point, that if the user continued openly and uninterruptedly for twenty years, without permission, the jury would be warranted in presuming a right of way. If the jury were not bound to presume a grant, they were certainly authorized to do so.

The third prayer properly presents the point, that if the right of way once existed by twenty years' user, it could only be destroyed by abandonment or non-user for a like period. Wright v. Freeman, 5 H. & J. 474; Bannon v. Angier, 2 Allen, 128; Jewett v. Jewett, 16 Barb. 150; Owen v. Field, 102 Mass. 114; Arnold v. Stevens, 4 Pick. 106; Bowen v. Team, 6 Rich. (S. C.) 298; Nitzell v. Paschall, 3 Rawle, 76; Browne v. M. E. Church, 37 Md. 108; 2 Waite's Actions & Defenses, 738, 740.

The instruction granted by the court is erroneous:

It shifts the burden of proof from the defendant to the plaintiffs as to user being adverse. The facts shown by the plaintiffs made it adverse, unless rebutted.

It requires the use to be exclusive. There was no evidence that it was otherwise. No one else exercised it as of right. The use by others was casual. Others may enjoy the use, without prejudice to that of the plaintiffs. 3 Waite's Actions & Defenses, 396; Nash v. Peden, 1 Spear, (S. C.) 17, 22; Davis v. Brigham, 29 Me. 391; Kent v. Waite, 10 Pick. 138.

In Day v. Allender, 22. Md. 529, where there was proof of use of the way by the public at large as of right, there was reason for requiring that the plaintiff should show his use was exclusive; but not so here, where the use by the plaintiffs is in its nature exclusive, and the use by the others only casual, and it was calculated to mislead the jury to say the use under the circumstances must be shown to be exclusive.

The instruction is contradictory in terms. It says the plaintiffs can...