1.
Where one uses a road, whenever he chooses, over the land of
another, without asking leave and without objection, the use
is adverse; and an adverse enjoyment uninterrupted for 21
years gives an indisputable title to the enjoyment.
2. Such
enjoyment, without evidence as to how it began, is presumed
to have been in pursuance of a grant; and the burden of
showing the contrary lies on the owner of the land.
3. If
the conclusion suggested by the counsel proposing a point is
admitted by the Court, it is not material that the Court
differed as to the foundation on which it rested.
4. In
reply to a proposition stating the foundation of the
presumption of a grant from the use of a way over
another's land, the Court, admitting the presumption to
exist, (inter alia ) charged that the foundation of
the presumption was immaterial. Held not to be
ground of error.
5. When
the Court is asked to say that there is evidence of a
particular fact, such evidence ought to be indicated. It is
not error in the Court to refer such a question to the jury.
6. A
party may entitle himself to the opinion of the Court as to
the legal effect of any portion of the evidence; but the
evidence must be specified in the prayer for instruction.
ERROR
to the Common Pleas of Delaware county.
This
was an action on the case for an obstruction of a way
brought by Esther Jackson v. William Garrett. It was brought
to determine the right of way across land of defendant to a
public road.
The
case was tried before HAINES, J. He stated the case
generally, as follows:--
"
Benjamin Lobb, who died about the year 1770, devised the land
through which the contested road passes, to his son Isaac
Lobb, who held it till his death, which happened about the
year 1803. Isaac Lobb, the elder, devised the same tract to
his son Isaac Lobb, the younger, who held it till his death
which happened in 1843; and the plaintiff holds a life estate
in the same land, and is now in possession. Thus we have a
title in the plaintiff, derived from former owners as far
back as the year 1770.
On the
other hand it is admitted that Thomas Garrett, the
grandfather of the defendant, purchased the land through
which the contested portion of this road passes so early as
the year 1773. He owned it until his death, which happened in
the year 1839, when the defendant became the owner of it, in
common with his brothers and sisters; and in 1844, he
obtained from them a deed for their shares, and became the
lawful owner of the whole tract. Thus a title in the
defendant is traced from the year 1773, through former owners
down to the present occupier."
"
It appears that Thomas Garrett, as early as 1795, owned two
tracts of land, one whereof was situated above, or north of
the Lobb tract, and the other below, or south of the same
both of them adjoining the premises of Isaac Lobb, and his
tract lying directly between them. The private road, a part
of which is now in dispute, ran through the three tracts
from a public road, skirting the southern border of the lower
Garrett tract, to a public road skirting the northern side of
the upper Garrett tract. The plaintiff, being in the
possession of the Lobb premises, claims the right of using
that part of this private road which runs through the upper
Garrett tract, and it is this supposed right which is now
interrupted.
The
private way here spoken of has been used for a period beyond
the memory of the oldest witness, and is remembered so long
back as 1795 as being used indiscriminately by the families
of Thomas Garrett and Isaac Lobb, whenever either of them had
occasion, and in whatever manner their conveniences required.
Two alterations at different times have been made in the
location of the road: one in the year 1800, at the upper
termination of the road, on the land held by Thomas Garrett;
and one about 1807, at the crossing of the line between
Thomas Garrett and Isaac Lobb, a part of which change was on
the ground of each of the owners of the premises, and could
not therefore have been made without the consent of both.
With these exceptions, the road has maintained its position
from the earliest recollection thereof to the present
moment."
On the
trial several points were submitted on the part of the
defendant: the third and fourth and fifth were as follows:
3. The
foundation of the presumption of a grant arising from the use
of a way over another's land, is the difficulty of
accounting otherwise for a long-continued use, injurious to
the interest of the owner and adverse to his will, and any
evidence therefore which sufficiently accounts for the use in
any other way rebuts and defeats the presumption.
4. In
this case there is evidence that the way in question passed
not only over lands of Thomas Garrett, but extended to and
over those of Isaac Lobb; also, that its origin had reference
to the convenience of Thomas Garrett only, and not to that of
Isaac Lobb, and that it was used by Isaac Lobb by the consent
of Thomas Garrett, and by both parties for their mutual
accommodation, which evidence is explanatory of the
enjoyment, weakens the presumption of a grant, and tends to
repel and defeat it.
5.
There is evidence for the consideration of the jury that the
use of the way by Isaac Lobb was with the consent and by the
leave of Thomas Garrett; and, if the jury believe that
evidence, it explains the nature of the use, divests it of
any claim to an adverse character, and the plaintiff is not
entitled to recover.
HAINES,
President J., charged the jury, inter alia, as
follows: " The law applicable to this case appears to be
well settled, viz., ‘ that an uninterrupted enjoyment
of a right of way, over the land of another, for the space of
twenty years and upwards, unanswered and unexplained, affords
presumptive evidence of title.’ This presumption may be
repelled by evidence which accounts for the possession or
user, without resorting to a title by grant or otherwise;
but, in the absence of such evidence, tending to show that
the long-continued use of the way may be referred to a
license or other special indulgence that is either revocable
or terminable, 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."
To the
third point, he answered: " It is immaterial what is the
foundation of the presumption of a grant arising from the use
of a way over another's land; it is enough, in the
present instance, to know that satisfactory evidence which...
