Nowlin v. Whipple

• Citation: 22 N.E. 669,120 Ind. 596
• Decision Date: 06 November 1889
• Docket Number: 13,590
• Parties: Nowlin et al. v. Whipple et al
• Court: Indiana Supreme Court

22 N.E. 669

120 Ind. 596

Nowlin et al. v. Whipple et al

No. 13,590

Supreme Court of Indiana

November 6, 1889

From the Dearborn Circuit Court.

The judgment is affirmed, with costs.

G. M Roberts and C. W. Hopt, for appellants.

C. Dandy, for appellees.

OPINION

Mitchell, J.

This was an action by Annie E. Nowlin and others against Lucian C Whipple and his wife, Nancy Whipple, the purpose of the suit being to obtain a decree perpetually enjoining the defendants from using an alleged private way over a tract of land which the plaintiffs own as tenants in common. Nancy Whipple is the owner of a fifty-acre tract of land, and she and her co-defendant assert a right to a drive-way twelve feet wide and about 1000 feet in length across the plaintiffs' land, in order to gain access to the above-mentioned tract, which they cultivate.

The facts pleaded and proved are substantially as follows: Prior to 1836 both tracts of land involved in the present suit were the property of Ezekiel Jackson, who died about that time. The tract now owned by the plaintiffs was inherited by, and set off to, the decedent's son, Jeremiah, and that owned by Mrs. Whipple, who is a daughter of Ezekiel Jackson, was acquired by her in like manner. While the land was thus owned by Mrs. Whipple and her brother the Whipples used the drive-way in question.

In 1853, the first-named tract became the property of Jeremiah Nowlin, who agreed with the Whipples, that if they would erect and maintain gates at each end of the drive-way, and look after the division fence, they might continue to use the way perpetually across his land, in order to reach their tract.

The gates were erected, and the agreement otherwise complied with. There was some evidence tending to show that Jeremiah Nowlin was one of the commissioners who made partition of the land between the Jackson heirs, and that in adjusting their shares a right of way had been given in favor of the fifty-acre tract over that owned by the plaintiffs and that the way in dispute had been used continuously, under a claim of right, for forty years or more prior to 1885, when the plaintiffs, the descendants of Jeremiah Nowlin, sought to prevent the further use of the way. The question now is, whether upon the foregoing facts the judgment of the court denying the injunction can be maintained?

To establish an easement or private way by prescription over the land of another, it must appear that the way was used continuously for a period of twenty years adversely to the owner, under a claim of right, and that the owner acquiesced in such use. McCardle v. Barricklow, 68 Ind. 356; Parish v. Kaspare, 109 Ind. 586, 10 N.E. 109; Hill v. Hagaman, 84 Ind. 287.

Adverse user is such an use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right. Such a use of property continued without interruption for a period of twenty years or more, is equivalent to a grant. Roots v. Beck, 109 Ind. 472, 9 N.E. 698; Blanchard v. Moulton, 63 Me. 434.

Where it appears that one has enjoyed a right of way over the land of another for a period of twenty years or more, 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. The presumption which arises from proof of uninterrupted adverse use for the required period is, that there was a grant, and this presumption can only be overturned by proof that the use was by permission, or in some other way not inconsistent with the rights of the owner of the land. Garrett v. Jackson, 20 Pa. 331; Pierce v. Cloud, 42 Pa. 102; McArthur v. Carrie's Admr, 32 Ala. 75 (70 Am. Dec. 529.)

The...