Dartnell v. Bidwell

• Decision Date: 28 September 1916
• Parties: DARTNELL v. BIDWELL.
• Court: Maine Supreme Court

98 A. 743

DARTNELL

v. BIDWELL.

Supreme Judicial Court of Maine.

Sept. 28, 1916.

Exceptions and On Motion from Supreme Judicial Court, Lincoln County, at Law.

Action by Ellen M. Dartnell against Grace S. Bidwell. On plaintiff's exceptions and motion for new trial after verdict for defendant. Exceptions and motion sustained.

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, and PHILBROOK, J.T.

Barrett Potter and Wheeler & Howe, all of Brunswick, for plaintiff. Geo. A. Cowan, of Damariscotta, for defendant.

SAVAGE, C. J. Trespass quare clausum. In defense, it was contended that the defendant had a right of way over the plaintiff's premises, and that the acts complained of, or some of them, at least, were done in making necessary and reasonable repairs of the way. A portion of the way was acquired by grant. The remainder was claimed by prescription. Whether she had such a prescriptive right was contested. The verdict was for the defendant. The plaintiff brings the case here on exceptions to refusals to give requested instructions, and on a motion for a new trial.

One of the issues in the case, and perhaps one decisive of the case, is whether the prescriptive easement claimed by the defendant was interrupted by the plaintiff while it was yet inchoate. The presiding justice was requested to instruct the jury that:

"The defendant must not only prove the use of the way claimed by prescription, for 20 years, but that it was continued, uninterrupted, and adverse; that is, under a claim of right, with the knowledge and acquiescence of the owner, and not as a matter of favor or courtesy on his part."

This language seems to have been taken from the opinion in Sargent v. Ballard, 9 Pick, (Mass.) 201. The presiding justice declined to give this instruction. In declining to do so he said:

"It is true that the use must be for 20 years, that it must be continued, uninterrupted, and adverse, under a claim of right, but it need not be under an acquiescence of the owner."

The plaintiff excepted. While the easement was still inchoate as claimed by the plaintiff, the plaintiff wrote a letter to the defendant, in which she said:

"You are hereby notified that that portion of my land * * * which you have recently plowed and made into a road is across my private property. * * * No person has or ever had any right to pass in or over this field, and you are liable to me in damages for trespass. * * * I hereby notify you to at once go back to the original location and the original cartroad width as given in deed Hussey to Myers in 1856. * * * I hereby forbid you or any one in your behalf to pass in or travel over any portion of my land whatsoever and especially that portion which you have unlawfully and without any right made into a road, and you are notified to hereafter travel only in the single cartroad. * * * "

This letter related to the prescriptive way in question. The plaintiff at the trial contended that this letter was an interruption of the defendant's inchoate easement, and requested an instruction to that effect. A third request differently phrased was to the same effect. These requests were refused, and the plaintiff excepted. All the exceptions so far may be considered together.

A prescriptive easement is created only by a continuous use for at least 20 years under a claim of right adverse to the owner, with his knowledge and acquiescence, or by a use so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed. Each of the elements is essential and each is open to contradiction. The existence of all the elements for the requisite period creates a right conclusive against attack. Rollins v. Blackden, 112 Me. 459, 92 Atl. 521, and cases cited. The present controversy concerns the element of acquiescence, and the question is whether the plaintiff's acquiescence was interrupted in law by the letter from which we have quoted. It is not claimed that the defendant's use was interrupted by it.

Acquiescence is used in its ordinary sense. It does not mean license or permission in the active sense. It means passive assent, or submission. It means quiescence. It is consent by silence. Pierce's Adm'r v. Pierce, 66 Vt. 369, 29 Atl. 364; Cass County Commissioners v. Plotner, 149 Ind. 116, 48 N. E. 635; Scott v. Jackson, 89 Cal. 258, 26 Pac. 898. See Webster's Dictionary, tit. "Acquiescence." Proof of acquiescence by the owner is held essential by all authorities. It raises the presumption of a grant. Rollins v. Blackden, supra. Where the adverse use has continued for 20 years without interruption or denial on the part of the owner, and with his knowledge, his acquiescence is conclusively presumed. It was error then to rule that proof of acquiescence was unnecessary.

The distinction between the creation of an easement by adverse use and the gaining of a title to land by adverse possession is not always borne in mind. We said in Rollins v. Blackden, supra, that:

"In the matter of acquiescence, the creation of a prescriptive easement logically differs from the acquisition of a title to real estate by adverse possession. In the former the possession continues in the owner of the servient estate, and the prescriptive right arises out of adverse use. In the latter, the owner is ousted from possession, and the right or title arises out of adverse possession; and nothing short of making entry, or legal action, will break the continuity of possession."

See Workman v. Curran, 89 Pa. 226.

If the case at bar had been one of claimed adverse possession, the request would have been erroneous, and the ruling would have been right.

Anything which disproves acquiescence rebuts the presumption of a grant. Smith v. Miller, 11 Gray (Mass.) 145. It interrupts the inchoate easement. So far there is no dispute. The question now is: In what manner may acquiescence be disproved? And upon the question the authorities are divided. Upon one side is the leading case of Powell v. Bagg, 8 Gray (Mass.) 441, 69 Am. Dec. 262, in which it was said that if the owner of the land before the lapse of 20 years, "by a verbal act upon the premises in which the easement is claimed, resists the exercise, * * * and denies its existence, * * * his acquiescence * * * is disproved, and the essential elements of a title * * * by adverse use are shown not to exist." In C. & N. W. Ry. Co. v. Hoag, 90 Ill. 339, which was a case where the owner orally remonstrated against the use, the court approved the doctrine of Powell v. Bagg, and went further, and held that it was not material where the remonstrance was made, whether on or off the land. The doctrine that denials and remonstrances, on or off the land are sufficient to rebut acquiescence, and work an interruption is supported by Workman v. Curran, supra; Nichols v. Aylor, 7 Leigh (Va.) 546; Field v. Brown, 24 Grat. (Va.) 74; Reid v. Garnett, 101 Va. 47, 43 S. E. 182; Stillman v. White Rock Mfg. Co., 23 Fed. Cas. 549; Wooldridge v. Coughlin, 46 W. Va. 345, 33 S. E. 233; Crosier v. Brown, 66 W. Va. 273, 66 S. E. 326, 25 L. R. A. (N. S.) 174; Andries v. Detroit, G. H. & M. R. Co., 105 Mich. 557, 63 N. W. 526; Bealey v. Shaw, 6 East, 216; Livett v. Wilson, 3 Bing. 115; Washburn on Easements, p. 162.

On the other hand, there are courts which hold that mere denials of the right, complaints, remonstrances, or prohibitions of user, unaccompanied by physical interference to some degree, will not prevent the acquisition of a right by prescription. The leading case, perhaps, on this side, is Lehigh Valley R. R. Co. v. McFarlan, 43 N. J. Law, 605. See other cases referred to in Rollins v. Blackden, supra. In the New Jersey case, the court seemed to follow by analogy the doctrine of adverse possession, and did not mark the distinction, which we have pointed out, between creating an easement and acquiring...