Thompson v. Bowes

• Decision Date: 03 April 1916
• Citation: 97 A. 1,115 Me. 6
• Parties: THOMPSON et al. v. BOWES.
• Court: Maine Supreme Court

97 A. 1

115 Me. 6

THOMPSON et al.

v. BOWES.

Supreme Judicial Court of Maine.

April 3, 1916.

Report from Supreme Judicial Court, Knox County, at Law.

Action on the case by E. M. Thompson and others against Hamlin B. Bowes. Heard on report. Judgment for plaintiffs.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

A. S. Littlefield, of Rockland, for plaintiffs. E. C. Payson and R. I. Thompson, both of Rockland, for defendant.

SAVAGE, C. J. This case comes before this court upon the following report: This is an action on the case by the owners of Moneka Block in Union to recover against the defendant for obstructing an alleged right of way. The defendant has built a building over the right of way claimed. The way claimed is around the east end of Moneka Block. The southerly line of said block faces Union common. Said way claimed is across land which is a part of the Free Church lot, so called, which church is a duly organized and a regular parish under the laws of this state. The block, church, surrounding land, and buildings are as shown on the plan. The said church was built in 1839, and that and the lot have up to within less than 20 years, been used for the church purposes. Moneka Block was built in 1857, and since that time the way in question has been so used by the owners of said block as would give them a right of way if the property over which it is claimed were private property, unless the fact that others used it would prevent the acquisition of that right; it being admitted that the use by the plaintiff was not exclusive, but that others having occasion used it. The defendant contends that no right of way could be acquired across said church property. If the plaintiffs have a right of way, judgment is to be awarded for them for an amount sufficient to carry costs; otherwise judgment is to be entered for the defendant.

The defendant objects in the first place that plaintiffs in their writ have not set out any right of way by limits and bounds, and have left the location of the claimed right indefinite and uncertain. But that question is not before us. The parties have stipulated in the report that, "if the plaintiffs have a right of way," judgment is to be awarded for them. The existence of a right of way is the only question submitted to the court; not its location.

It is admitted that the plaintiffs have used the way in such manner and for such length of time as would have gained for them a prescriptive right of way, if the land over which the right is claimed had been private property. By the phrase "private property" we understand is meant property belonging to a private individual; for church property is private property as distinguished from the property of the state or of a municipality, which is public property. Property held for pious or charitable uses, not for the whole public, but for a limited portion of the public, is private property, and, as such, We have no doubt, is subject to the application of the doctrine of prescriptive easements. Kinsell v. Daggett, 11 Me. 309; Kilburn v. Adams, 7 Metc. (48 Mass.) 33, 39 Am. Dec. 754; Burnham v. McQuestion, 48 N. H. 446; Society for the Propagation of the Gospel v. Sharon, 28 Vt. 603; Mowry v. City of Providence, 10 R. I. 52. Accordingly we hold that a right of way could be acquired by prescription across the church property.

Was such a right of way acquired? Certainly the fact that others having occasion used it did not prevent the plaintiffs from acquiring the right for themselves. That needs no argument.

The space between the plaintiffs' building and the church edifice was about 16 feet wide. The exhibits which are made a part of the report show that the land in front of and about the church edifice, including that at the side of it over which the right of way is claimed, was open and uninclosed. And, this being so, the defendant relies largely upon Kilburn v. Adams, 7 Metc. (48 Mass.) 33, 39 Am. Dec. 754,...