Nichols v. Peck

• Decision Date: 24 March 1898
• Citation: 39 A. 803,70 Conn. 439
• Court: Connecticut Supreme Court
• Parties: NICHOLS v. PECK. SAME v. HUTCHINSON (two cases).

39 A. 803

70 Conn. 439

NICHOLS

v. PECK.

SAME

v. HUTCHINSON (two cases).

Supreme Court of Errors of Connecticut.

March 24, 1898.

Appeal from court of common pleas, Hartford county, David S. Calhoun, Judge.

Action by Harry Nichols against Cornelius Peck in the nature of trespass quare clausum fregit, brought originally before a justice of the peace, and thence by the plaintiff's appeal to the court of common pleas. The case was tried to the court, and facts were found and judgment was rendered for defendant, and plaintiff appeals. Error, and new trial granted.

Two other cases by the same plaintiff against Frank Hutchinson and Levi Hutchinson, respectively, identical in their facts, were tried and argued with the foregoing case.

In each of the cases a Justification was pleaded, under a right of way by prescription from the highway to a lot owned by the defendant Peck, known as the "Jones Lot." The reply denied any such right, but admitted that the defendant owned the Jones lot, and that there was no mode of access to it except over the plaintiff's land. It also setup, as an estoppel in pais, that the plaintiff bought his land In 1892 on Peck's assurance that he did not claim any right of way over it to the Jones lot,

Cornelius J. Danaher, for appellant.

Charles H. Sawyer, for appellees.

BALDWIN, J. In 1885 the defendant Peck had acquired, by an adverse user of 40 years, a prescriptive right to a way about 43 rods in length, over a farm now owned by the plaintiff, between a certain lot called the "Jones Lot," which was wholly inclosed by that farm, and the highway. The way was not defined by any worn track, but had always been traveled in substantially the same course, running for half its length through a narrow swale, and connecting with the highway through a certain bar-way. In that year the grade of the highway was so lowered by the town authorities as to make the barway useless, whereupon the then owner of the farm closed it, and opened a new entrance from the highway, by a barway set over 70 feet south of that formerly existing. For seven years thereafter the defendant used the new barway as belonging to his way, adversely, under a claim of right. Then the plaintiff bought the farm, and for four years more Peck continued to use the new bar-way, with his express approval. At the end of that period the plaintiff chained up and padlocked the gate of the barway, and now sues Peck for breaking the chain in order to get access to his lot.

The owner of land which is subject to a right of way is not bound, unless by virtue of some agreement, to keep the way in repair, or to be at any expense to maintain it in a passable condition. The owner of the right of way may repair it, and do whatever is reasonably necessary to make it suitable and convenient for his use. When the old barway became useless, it was therefore the right of Peck to lower it, and alter the level of his way to correspond with the new grade of the highway. Smith v. City of Rome, 19 Ga. 89. He preferred to make use of another barway set up by the owner of the farm, over 70 feet distant from the prescriptive bounds of his way, and to this no objection was made for 11 years. When the plaintiff chained up the gate, however, and locked it, he sufficiently manifested his intention that this use should be continued no longer, and effectually revoked any license implied from his previous conduct. "Res ipsa loquitur." Foot v. Northampton Co., 23 Conn. 214, 223. A way by prescription, which runs in a defined course to a fixed point, is no more...