Pavey v. Vance

Decision Date30 March 1897
Citation56 Ohio St. 162,46 N.E. 898
PartiesPAVEY v. VANCE et al.
CourtOhio Supreme Court

Error to circuit court, Highland county.

Suit was brought by D. J. Vance and others to enjoin the defendant, A. E. Pavey, from closing up a certain way used by the plaintiffs over his land, which they claimed as appendant to their land. The defendant denied the right. The case was appealed to the circuit court, where, at the trial on the issues, the court, at the request of the defendant, made a finding of the facts and its conclusions of law separately. The finding of facts is as follows: ‘That the plaintiffs are the owners in fee simple of the lands described as theirs in the petition, and that the defendant is the owner of the lands set out in the petition as his that the plaintiffs acquired the legal title from D. J Vance; that D. J. Vance had occupied the lands from A. D 1857; that the defendant acquired the title to his lands from Penelope Evans, who acquired it from Benjamin Barrere, now deceased; that defendant had notice after he contracted to buy said premises, and before his acceptance of the conveyance to him from Evans, that D. J. Vance claimed the right of way contended for by the plaintiffs in this suit that, for more than twenty-one years prior to the acquiring of title by defendant of the lands from Penelope Evans, D. J. Vance and his family, in going to and from his farm and dwelling to the turnpike leading from Hillsboro to New Market, and others going to and from said pike to Vance's, had passed over the lands of defendant, using a way or road through defendant's farm as a foot way, wagon way, carriage way, and for hauling produce to and from said Vance's farm, and horseback way, without let or hindrance or obstruction from Benjamin Barrere in his lifetime, or Penelope Evans, or their tenants; that said road was used by said Barrere and his successors in ownership, during all of said period of time, as a farm road through his farm from the pike to the dwelling house on the D. J. Vance farm, and to the back part of the farm to the farm line of said Vance, said entire farm being inclosed during all of said period of time, being inclosed by fences and gates; that the Vances, and also the owners and occupants of defendant's lands, used said way whenever they saw fit, and was also used as one of the means of approach (but not the only road) to the Vance farm and house, and for departure therefrom, to and from the said turnpike, and was so used by said Vances and those going to and from the Vance place, without asking leave of the occupants of defendant's farm and without objection. The said roadway is described as follows: Beginning in the line of the land of defendant and land of Jesse and Elizabeth McConnaughey (formerly owned by Benj. Barrere); running thence a northwesterly course over the lands of said defendant, Pavey, and, crossing a branch of Rocky Fork creek, passes by the dwelling house on the lands of said Pavey, and continued a northwesterly course to the said Ripley turnpike, at a point about twenty-seven rods southwest of the schoolhouse on said turnpike known as the ‘Kansas Schoolhouse,’ there being three gates on said roadway, viz. one gate at the pike, one at the Pavey dwelling house, and one at the line between the lands of the defendant and said Jesse and Elizabeth E. McConnaughey, and the length of said right of way from where it enters that land of said Pavey to its termination at said turnpike being about 116 rods. The court further finds that the defendant, A. E. Pavey, obstructed said roadway in the spring of A. D. 1893, prior to the bringing of this suit, by erecting a fence across the same, and ever since preventing the Vances' passing over the same in vehicles and on horseback.' The court found as a matter of law from these facts that the plaintiffs were the owners of a right of way by prescription over the lands of the defendant, and rendered judgment for the relief prayed for, enjoined the defendant from obstructing the way, other than by the use of gates as before maintained, and ordered the removal of the obstructions. The defendant excepted to the court's conclusions of law and judgment on the facts, and prosecutes error here for a reversal of the judgment, on the ground that it is not supported by the facts. Affirmed.

Syllabus by the Court

1. Where one uses a way over the land of another without permission as a way incident to his own land, and continues to do so with the knowledge of the owner, such use is, of itself, adverse, and evidence of a claim of right; and, where the owner of the servient estate claims that the use was permissive, he has the burden of showing it.

2. When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction, for the period of 21 years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land, and the right will pass by a conveyance or descent of the land.

Pavey & Chaney and Gardner, Worley & Sams, for plaintiff in error.

C. H. Collins and D. Q. Morrow, for defendants in error.

MINSHALL, J. (after stating facts).

The plaintiff in error claims that the court erred in its judgment because it does not appear from its finding that the way was used for the requisite period adversely to the defendant and his predecessors in title, and under a claim of right, nor is it found that it was not permissive. The court found that, for more than 21 years prior to the time the...

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65 cases
  • Leonard L. Grace v. Anthony H. Koch and Elizabeth A. Koch
    • United States
    • Ohio Court of Appeals
    • October 9, 1996
    ...to have a just right thereto, without which he could not have been suffered to continue so long in the enjoyment of it. Pavey v. Vance (1897), 56 Ohio St. 162 (citing Brown's Institute of the Whole Law, 418). Thus, adverse possession was not regarded as a source of title, but as a means of ......
  • Rodgers v. Pahoundis
    • United States
    • Ohio Court of Appeals
    • September 2, 2008
    ...if the owner of the property in question claims that the use was permissive, the owner has the burden of proving it. Pavey v. Vance (1897), 56 Ohio St. 162, 46 N.E. 898. {¶ 43} Each case of adverse possession rests on its own peculiar facts. Bullion v. Gahm, 164 Ohio App.3d 344, 349, 2005-O......
  • Railroad Co. v. Roseville
    • United States
    • Ohio Supreme Court
    • March 19, 1907
    ... ... F ... A. Durban, for plaintiff in error, cited and commented upon ... the following authorities: ...          Pavey ... v. Pavey, 30 Ohio St. 600; Bank v. Closson, 29 Ohio St. 78; ... Lembeck v. Nye, 47 Ohio St. 336; Lessee of Village of Fulton ... v ... v. City of ... Cleveland, 7 C. C., 470; McClelland v. Miller, 28 Ohio St ... 488; Young v. Spangler, 2 C. C., 549; Pavey v. Vance et al., ... 56 Ohio St. 162; Ward v. Cochran, 150 U.S. 597; Dietrick v ... Noel, 42 Ohio St. 18; Falter et al. v. Packard et al., 76 ... N.E ... ...
  • Hall v. Dasher
    • United States
    • Ohio Court of Appeals
    • May 24, 2022
    ...a way incident to his own land, and continues to do with the knowledge of the owner, such use is, of itself, adverse." Pavey v. Vance , 56 Ohio St. 162, 46 N.E. 898 (1897). Any use of the land inconsistent with the rights of the titleholder is adverse or hostile. Kimball v. Anderson , 125 O......
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