Parish v. Kaspare

• Decision Date: 15 February 1887
• Docket Number: 11,771
• Citation: 10 N.E. 109,109 Ind. 586
• Parties: Parish v. Kaspare
• Court: Indiana Supreme Court

10 N.E. 109

109 Ind. 586

Parish v. Kaspare

No. 11,771

Supreme Court of Indiana

February 15, 1887

Petition for a Rehearing-Overruled April 6, 1887.

From the Hancock Circuit Court.

Judgment reversed.

J. A New, J. W. Jones, C. G. Offutt and R. A. Black, for appellant.

E Marsh, W. W. Cook and W. H. Martin, for appellee.

OPINION

Elliott, C. J.

The first paragraph of the appellant's complaint alleges that the appellant owns in fee a described tract of land; that the appellee is the owner of another tract of land, which is specifically described; that for fifty consecutive years a way has existed over the appellee's land; that for twenty years the way has been open to the appellant as an easement, and that he and his grantors have been permitted by the appellee and his grantors to uninterruptedly use the way for fifty years, and that in March, 1883, the appellee wrongfully closed up the way.

There was no error in sustaining a demurrer to this paragraph. On the facts pleaded, the appellant had a mere naked license to use the land of the appellee, and such a license is revocable at the pleasure of the licensor. Williamson v. Yingling, 93 Ind. 42; Rogers v. Cox, 96 Ind. 157 (49 Am. R. 152); Nowlin v. Whipple, 79 Ind. 481; Hodgson v. Jeffries, 52 Ind. 334; Miller v. State, 39 Ind. 267; Snowden v. Wilas, 19 Ind. 10; Cronkhite v. Cronkhite, 94 N.Y. 323; Wiseman v. Lucksinger, 84 N.Y. 31 (38 Am. R. 479); Ellsworth v. Southern, etc., Co., 31 Minn. 543, 18 N.W. 822; Batchelder v. Hibbard, 58 N.H. 269; Lockhart v. Geir, 54 Wis. 133, 11 N.W. 245.

A license does not convey any title to the land, and where a mere license is relied on, it must appear that there was a consideration paid for it, or it will be deemed revocable at the will of the person granting it. Clauser v. Jones, 100 Ind. 123; New York, etc., R. W. Co. v. Randall, 102 Ind. 453, 26 N.E. 122; Malott v. Price, ante, p. 22.

Where a consideration is paid, or value has been parted with, on the faith that the license is perpetual, then it can not be revoked. Rogers v. Cox, supra; Buchanan v. Logansport, etc., R. W. Co., 71 Ind. 265.

There can be no title by prescription, because it does not appear that the user was under claim of right. Postlethwaite v. Payne, 8 Ind. 104; Peterson v. McCullough, 50 Ind. 35; Palmer v. Wright, 58 Ind. 486; McCardle v. Barricklow, 68 Ind. 356.

An owner of land is not shorn of any of his rights by merely permitting, as a favor, another to pass over his land. In order to establish a prescriptive right, something more than mere permissive user must be shown. Goddard Easements (Bennett's Ed.), 134.

The use of land for the purpose of passing over it is not inconsistent with the right of ownership, and where there is no inconsistency between the use and the ownership, there can be no prescriptive right. It is not necessary, to establish a prescriptive easement, that there should be color of title; but it is necessary that the use should be under an assertion of right, and not simply a user under a naked license.

There is a similarity between the first and second paragraphs of the complaint, but there is nevertheless an essential difference. The allegations which exhibit this difference are these: "And plaintiff says that the remote grantor of the plaintiff and the defendant was the owner of the real estate now owned by the defendant and that owned by the plaintiff; that the remote grantor conveyed the tract of land owned by the plaintiff to the remote grantor of plaintiff, and as a part of said conveyance an easement was given to said purchaser over the defendant's real estate, and that the same was at said time laid out and fenced off by said grantor, and that the same has been so continuously laid out, and has always since said time been held as an easement by the plaintiff and his grantors to his plaintiff's, real estate. And plaintiff avers that when said private way was opened by the grantor of the defendant, for the purpose of preventing stock from entering upon the adjoining tracts of land, said grantor erected a gate at the western extremity of said way, but that the said gate was not put up for the purpose of hindering plaintiff's grantors from travelling over the said way,...