Reed v. Garnett

• Decision Date: 15 January 1903
• Citation: 101 Va. 47,43 S.E. 182
• Parties: REED et al. v. GARNETT.
• Court: Virginia Supreme Court

43 S.E. 182

101 Va. 47

REED et al.

v.GARNETT.

Supreme Court of Appeals of Virginia.

Jan. 15, 1903.

BASEMENTS—RIGHT OF WAY—PRESCRIPTION— EXCLUSIVE USER—ADVERSE USER —ACQUIESCENCE.

1. To establish a private way by prescription over the land of another, the use and enjoyment thereof by the claimant for at least 20 years must be shown to be adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the acquiescence of the owner of the land.

2. The presumption of a grant, arising from the unexplained use of a right of way over the land of another for 20 years, is negatived by proof showing that the claimant and the public generally have used the way during the 20 years.

3. The enjoyment of a right of way by a claimant in common with the public, and without claiming the right to use the way under an independent claim in his favor, is not exclusive so as to ripen into title by prescription.

4. The use of a way by a claimant in common with the public is regarded as being exercised under an implied license, and is not adverse unless there is some act on his part indicating an independent claim of right.

5. Proof that the claimant used the way more frequently than the public, and occasionally did some work on it, did not show an exclusive use of the way under an independent claim of right.

6. Where the landowner denied the existence of a claimant's right of way and threatened to close up the way before the expiration of 20 years from the time the right was first claimed, though no act was done to prevent the use of the way until the expiration of the 20 years, the use of the way by the claimant was not acquiesced in so as to enable him to acquire title by prescription.

Appeal from circuit court, Madison county.

Suit between one Reed and another and one Garnett. From a decree in favor of the latter, the former appeal. Reversed.

Hay & Browning and F. C. Gordon, for appellants.

Thrift & McMullan, for appellee.

BUCHANAN, J. In order to establish a private right of way by prescription over the lands of another, the use and enjoyment thereof by the claimant must be shown to be adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over which it is claimed (Gaines v. Merryman, 95 Va. 660, 666, 29 S. E. 738; Washb. Easem. [3d Ed.] side p. 86); and such use and enjoyment must continue for a period of at least 20 years (Cornett v. Rhudy, 80 Va. 710).

It is conceded by the appellants (the Misses Reed, the landowners) that the appellee, Garnett and those under whom he claims, have had the use and enjoyment of the way in question for more than 30 years, but it is denied that such use has been either exclusive or with the acquiescence of the landowners under a claim of right.

Does the record show that the appellee's use and enjoyment of the way was exclusive?

It appears that the way passes over thelands of the appellants for about one-fourth of a mile, In part through woods, and has been used by the owners of the land, the neighbors, and public generally for many years. The appellee testified, himself, that during his father's lifetime the way was not only used by his father, but by the public also. His father purchased the land now owned by the claimant in the year 1859, and held it until his death in the year 1873. The appellee proved by another witness, A. G. Smith, that the way had been used by the Garnetts and the public generally for a period of 30 years, or at least from the year 1S70 until the ford at the river was closed, which seems to have been only a few years prior to the institution of this suit. It thus appears from the claimant's own evidence that during his father's lifetime, and until the institution of this suit, or a short time before, the way was used by the public generally as well as by the Garnetts and their tenants. Where there has been the use of an easement for 20 years unexplained, it will be presumed to be under a claim of right, and adverse, and will be sufficient to establish a title by prescription and to authorize the presumption of a grant, unless contradicted or explained. But this presumption does not arise if the way is used in common with the public. Such common use negatives the idea of a presumption in favor of an individual, and does not thereby establish a private way. Washb. Easem.. 97; Day v. Allender, 22 Md. 528; Prince v. Wilbourn, 1 Rich. Law, 58; Jones, Easem. § 274.

The use and enjoyment of a way in common with the public is not exclusive within the meaning of that term when used in reference to the acquisition of a private right of way by prescription. Whilst it is not necessary, in order to be exclusive, that he who claims the right of way should be the only one who can or may enjoy the same way over the land, yet his right must not depend for its enjoyment upon a similar right in others, and he should have the right to exercise it under some claim existing in his favor independent of all others. Washb. Easem. 97; Cox v. Forrest, 60 Md. 80; Davis v. Brig-ham, 29 Me..403; Jones, Easem. §§ 273, 274; McKenzie v. Elliott, 134 111. 156, 24 N. E. 965.

Where a landowner keeps open and uses a way, its enjoyment and use by another in common with the public must generally be regarded as permission or under an implied license, and not adverse, unless there be some decisive act on the part of that other indicating a separate and exclusive use under the claim of right. See Washb. Easem. 97; Jones, Easem. § 288; Kilburn v. Adams, 7 Mete. (Mass.) 33, 39-Am. Dec. 754; Com. v. Kelly, 8 Grat 632; Coberly v. Butler, 63 Mo. App. 556.

A different doctrine would have a tendency to do away with all neighborhood accommodation in the way of travel,...