Smith v. Ponsford

• Decision Date: 23 November 1915
• Docket Number: No. 22940.,22940.
• Citation: 184 Ind. 53,110 N.E. 194
• Parties: SMITH et al. v. PONSFORD.
• Court: Indiana Supreme Court

184 Ind. 53

110 N.E. 194

SMITH et al.

v.PONSFORD.

No. 22940.

Supreme Court of Indiana.

Nov. 23, 1915.

Appeal from Circuit Court, Washington County; Wm. H. Paynter, Judge.

Action by Cassie Smith and another against Samuel Ponsford.There was a judgment for defendant, and plaintiffs appealed to the Appellate Court, and it transferred the cause to the Supreme Court under Burns'Ann. St. 1914, § 1405. Affirmed.

James G. Berkey and Elliott & Houston, both of Salem, for appellants.W. W. Hottel and O. K. Hobbs, both of Salem, for appellee.

LAIRY, J.

This suit was brought by appellants to enjoin appellee from closing up or obstructing a right of way which appellants claimed, extending from their farm over and across the land of appellee to a highway known as the Salem and Corydon road.On final hearing the trial court denied appellants' right to an injunction, and entered judgment for appellee.As grounds for reversal appellants assert that the evidence is not sufficient to sustain the finding, and that the trial court erred in striking out parts of the complaint on motion of appellee.

The lands owned by appellants do not touch upon any highway, but lie about 30 or 40 rods west of the Salem and Corydon road, which runs north and south through lands owned by appellee.There can be no doubt from the evidence that appellants have been using a way across the lands lying between their lands and the highway for more than 30 years before this suit was commenced, and that the use continued without objection until a short time before such suit was instituted, when appellee refused to permit them to continue such use.

Appellants claim and seek to maintain a right of way acquired by prescription, and they assert that the evidence without dispute sustains their claim that the way in question has been used continuously without objection for more than 20 years, and that the use was open and adverse under a claim of right.On the other hand, appellee asserts that the evidence is of such a character as to justify the inference that the use of the way in question was permissive in its origin, and the use was never exercised under a claim of right or adversely to the rights of the owner of the fee.

[1] It is well settled that a use which is merely permissive or which is exercised under a mere license cannot ripen into an easement, no matter how long it may be continued.Conner v. Woodfill, 126 Ind. 85, 25 N. E. 876, 22 Am. St. Rep. 568;Parish v. Kaspare, 109 Ind. 586, 10 N. E. 109.

[2] The use of lands of another will not be deemed adverse so as to ripen into an easement unless such use is hostile to the rights of the owner of the fee.It must be of such a character as would expose the claimant to an action of trespass in case his claim was unfounded.The use must be...