Johnson v. Lewis
| Decision Date | 01 November 1885 |
| Citation | 14 S.W. 466 |
| Parties | JOHNSON <I>et al.</I> v. LEWIS <I>et al.</I><SMALL><SUP>1</SUP></SMALL> |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Little River county; H. B. STUART, Judge.
Dan W. Jones, for appellants. Geo. W. Williams, for appellees.
The appellant Johnson filed his complaint against appellees, Thomas and William Lewis, alleging that he was in possession, and had been for some time, of a small tract of land which is surrounded by the farm of the defendants in such manner as that there is no mode of egress from it to any public highway, or ingress from any public highway, except across and upon the land of the defendants. He further alleges that he, and those under whom he claimed, had been in the habit of crossing the lands of defendants, to and from the surrounded premises, for more than 12 years, whereby a right of way had accrued to him as an easement to his said lands by prescription. But he alleges that defendants had wrongfully and unjustly inclosed their said lands, stopped up the way where he had been crossing, and refused to permit the plaintiff to cross the same in any manner to or from his said premises; that he had planted on his said lands 12 acres of cotton and 10 of corn, which were lost to him on account of such unjust proceeding of defendants, and he claimed damages in that amount.
To this complaint the defendants filed a general demurrer. Subsequently this demurrer was conceded, and the complaint was amended by interlineation, but the record does not disclose what this interlineation was. To the complaint as amended, however, the defendants filed a general demurrer. At this stage of the proceedings William H. Bizzell petitioned the court to be made a party plaintiff, alleging that he was the owner of the lands described in plaintiff's complaint, and that the said plaintiff Johnson was his tenant; that the right of way across the defendants' lands claimed by his co-plaintiff Johnson was an easement incident to his said lands, which had existed and been enjoyed in behalf of himself, and those under whom he claimed, for more than 12 years, and was a right implied in the grant of said lands from the government; that being such owner, and in possession of said lands and right of way appurtenant thereto, he had rented the same to said Johnson for the year 1879, at the yearly rent of $75, which Johnson had agreed to pay him out of the crop to be raised thereon, whereby, and by reason of the statute in such cases provided, he had acquired a lien upon the crop of cotton and corn so planted thereon for the payment of such rent, but by reason of such unlawful conduct and doings of the defendants, said crop was wholly lost, and, Johnson being insolvent, he was wholly unable to collect his said rent, and that by reason of such wrongful acts he was deprived of the use of his lands, etc. Bizzell was made a party plaintiff upon his petition. His petition was taken as a part of the complaint, and defendants' general demurrer extended to the petition, as well as to the original complaint. The court after consideration sustained the demurrer, and dismissed the whole proceeding. The plaintiffs appealed to this court.
It is insisted by the appellants that the allegations in the complaint sufficiently state that the plaintiffs have been in the actual enjoyment of a right of way across defendants' lands for a length of time which would clothe them with a vested right in such way, and the demurrer, admitting the truth of these allegations, should have been overruled. It is further insisted that seven years, or the period of our statute of limitations for the recovery of real property, is the period in which the enjoyment of such way would ripen into a vested right of way which could not be taken away. We are of the opinion, however, that the pleadings do not raise or present the question of a right of way across these defendants' lands by prescription. A right of way across another's land, where it exists, is an incorporeal hereditament, which may be appurtenant to adjoining lands, or in gross, but such...
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