
    
      John A. Bowen vs. James Team.
    
    A continued and adverse obstruction, for ten years, of a right of way, by tho owner of the soil over which it passes, bars, undor tho statute of limitations, tho right to the easement. In such case the owner of tho soil, when sued for the obstruction, neednot plead the statute, specially.
    
      Before O’Neall, J., at Kershaw, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was an action on the case for obstructing an alleged private right of way. The defendant pleaded, 1st. The general issue ; 2d. That the way was not a private way; 3d. Actio non accrevit infra quatuor annos. ,
    
      “ The plaintiff acquired the right to the tract of land to which he claimed the way to be appurtenant, 4th Nov. 1846. The writ was sued out March, 1851. The proof clearly shewed that the defendant, on a tract of land called the Horn Land, had obstructed the road now claimed as a private way by a field cleared, cultivated, and fully inclosing and stopping it up, more than ten years before action brought. I thought the plea actio non accrevit infra quatuor annos, could not avail the defendant. But I thought, and so told the jury, that ten years occupation of a road by inclosing it within a field, operated as a conveyance or release of the easement. This I thought to be clear, inasmuch as an adverse occupation of the soil for ten years would have the effect to convey the legal title to the possessor. See Wagner vs. Aitón, Rice, 105, and Williams vs. McAliley, Cheves, 200.
    “ The jury found for the defendant, very much, I presume, on this ground, although there was much in the case on which they might have found against the plaintiff. But if I was wrong in this, he is entitled to a new trial.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because his Honor instructed the jury, that ten years possession of.a field which obstructed the road claimed, would defeat the right where it had fully accrued before the obstruction had been erected.
    2. Because ten years possession should have been specially pleaded in order to defeat the right.
    
      Kershaw, for the motion,
    cited Gale and W. on Easem. 257, 281, 275; Co. Litt. 114 b; White vs. Crawford, 10 Mass. R. 183; 10 Pick. 310; Com. Di'g. Prescription, E, 2 ; 2 Saund. R. 175 a.
    
      Chesnut, contra,
    cited Evans’s Road Law, 70 ; Cuthburt vs. Lawton, 3 McC. 194 ; Parkins vs. Dunham, 3 Strob. 224 ; 4 Stat. 585; Gale and What, on Easem. 66.
   The opinion of the Court was delivered by

O’Neall, J.

In this case the single question is, whether the actual obstruction of á right of way, as inclosing a road within a field, and cultivating the ground over which it once ran, for ten years, before suit brought, does not defeat the plaintiff’s claim for its allowance and for damages ?

That it does I was clear on the circuit, and still remain so.

In deciding it, there is no necessity to refer to foreign rules and adjudications. We have enough, at home, for its disposition.

The Act of limitations (1712; P. L. 101; 2 Stat. 583) in its very words, covers the case, and will shut out the plaintiff’s right to recover for an easement, exactly as it would the land itself. Let it be remembered, before we read the Act, that a right of way is a hereditament, incorporeal as to the right, but yet capable of possession, in the real thing which it confers, and arising most generally from possession.

In the first section it is declared, that a possession of seven years last past, of lands, tenements and hereditaments, shall be a good title to the same. Is not this provision just as effectual as a grant or conveyance ? Indeed, it operates as such. What would hinder such a possession of a way for seven years before the Act, from granting a right, or releasing it, as the case might be?

The 2d section provides, if any person in whom any right or title to lands, tenements or hereditaments, shall descend or come, does not prosecute the same within five years (now ten) after such right or title accrued, then he, and all claiming under him, shall be forever barred to recover the same.”

Observe that the words are, any right to'“a hereditament” will be barred, as well as title to lands, by ten years non-assertion of a claim against the occupant. What hinders those words from defeating a right to a hereditament, when there is an actual adverse possession of the hereditament itself? I confess I think it is only necessary to give the words their plain, obvious meaning, instead of undertaking to hedge them round with technicalities utterly unsuited to us.

The great difficulty is supposed to be in barring an intangible right. But is not title to land equally intangible ? There is, we well know, no difficulty in barring the title by the possession of the land. Is there any more difficulty in barring the right to the hereditament by the possession? It seems to me not.

But suppose it be necessary that the hereditament should be released to the owner of the soil to defeat the right. I hold that ten years adverse possession of land is a conveyance of the fee resting in the owner thus barred, and that ten years adverse possession of an easement, (a way,) by the owner of the soil, operates as a release to him of the right. In Wagner vs. Aitón, Rice 105, Brown was the grantee under whom the plaintiffs claimed; they could not connect themselves by conveyances with him : but they proved ten years adverse possession, under color of title in their ancestor. It was said by the Judge, who tried the cause, in his charge to the jury, that the true view of the case was to regard Wagner as having entered under Carter’s and Westbury’s conveyances, who, for aught that certainly appeared, might be strangers to Brown; but who had undertaken to convey his title, and under a title so derived, if he had an actual adverse possession of a part of the grant for more than five years before 1812, this was equivalent to the most perfect conveyance of the Brown grant to him, against all persons, not laboring under some disability.” By the second ground of appeal, this ruling was drawn directly in question. The Court of Appeals unanimously sanctioned it. In Williams vs. McAliley, Cheves, 200, the same ruling was made to carry to Lacy the oldest grant to Lowndes, and which was necessary to entitle the plaintiffs to recover. It was neither questioned by the appeal nor by the Court. On authority, therefore, I suppose I might say the point was settled. But test it by reason, the same result must follow. A. is in the possession under color of title of the land of B. for the statutory period. B. cannot recover it against him, or any body else. Why ? His title is gone, is the answer. Where is it ? It must be in the possessor. For there is no other person who can have the right of possessing and enjoying the land. Again; land is granted to B. : C., a stranger to him, comes into the actual possession under a conveyance from D., holds possession for more than ten years, and then E. intrudes on him, and he brings trespass to try title. Does not every lawyer know that the grant to B., D.’s conveyance to C., and ten years possession in him, give, so far as title is concerned, a right to recover ? That being so, must he not, by his possession, acquire, in legal contemplation, the title of B.? Can there be any better conveyance ?

If.land thus passes by possession from one person to another, can; there be any reason why a thing issuing out of it should not, in like manner, pass? The owner of the soil, by prescription, which is but another name for adverse possession held for twenty years of an easement, is supposed to grant a way. If that be so, the person entitled to the easement has title. Cannot the owner of the soil revest that title in himself by a possession which would give him the land itself, if it was in another? I confess that it seems to me to be plain, that that which would convey the greater, must necessarily convey the less.

It must be noted here that this is not the extinction of a way by non-user : there, it may be, it would require the same time to destroy, that it did to create. That may sustain Parkins vs. Dunham, 3 Strob. 224. This case, however, steers clear of that. For there was in it no actual occupation of the easement for ten years.

In Cuthhert vs. Lawton, 3 McC. 194, which was an action for obstructing a private way, Judge Waties, who was nearly coeval with the administration of law in this State, and who had as certain and perfect knowledge of our law, as any Judge who ever graced our Courts, speaking of the accrual of the right and its defeat, said, “ but after twenty years of uninterrupted use, it could only be defeated by an adverse and continued obstruction for five years.” This expression applied to the statutory period existing at the time of obstruction, and which was afterwards extended to ten years. He speaks of it, as an acknowledged legal truism, requiring no reasoning to give it effect. In Judge Evans’s treatise on the road law, p. 70, § 22, he cites this remark of Judge Waties, and intimates a similar opinion. These dicta and intimations are in accordance with my long entertained opinion, and coincide with my previous reasoning.

.1 am hence satisfied that the decision below was correct. The motion is dismissed.

Frost, Withers, Whitner and Glover, JJ., concurred.

Wardlaw, J.,

dissenting. If it is meant to ¿ec^^í^wthat the obstruction cf an easement, attended byju^i^0gi&(§$)i|the part of him who claimed a right to it, Jhrr¿|¡t,es evid^^^^f abandonment, and that, therefore, the j®y%ound¿geípMy fa the defendant in this case, I concur in thd^tes^^ ™

But I dissent, if a distinction new and p^Miar, ig^^ylt'Sis d| cisión to be introduced, under which the rel%se1pS>lh easeifient is to be presumed from non-user, or obstractióí^-&£-aítíEcfe short of that which would suffice to raise the presumption of the grant of an easement from its use. Obstruction, independent of other evidence of abandonment, is no more than non-user. An obstruction might actually subsist for ten years, and yet be unknown to the owner of the easement, or never interrupt any enjoyment which he desired to have. Such may have been the fact in the case before us, for aught that appears in the report, although we know the contrary from the Circuit Judge. The true question in the case is, whether the instruction was right, when the jury were told that ten years’ occupation of a road, by enclosing it within defendant’s field, operated as a conveyance or release of the plaintiff’s right of way. Apart from its effect as evidence of abandonment, it could have so operated only by means of the presumption which it established. There is no more propriety in referring now to our statute of limitations for the time to bar or release an easement, than for that to acquire or grant one. Originally twenty years was adopted as the ordinary period for raising presumptions, in analogy to the English Statute of limitations: but the rules of prescription, connected with this period, are firmly established in our system, without regard to any such analogy. It would be unsafe to give to ten years, in reference to other subjects of presumption, the effect which we ascribe to twenty. Symmetry, authority, and expediency, all seem to me to demand the same time for destroying an easement as for creating it, — or for raising the presumption of a grant from the owner of the dominant estate, as of a grant to him. I cannot see why an analogy should change one time, and the other remain as both have heretofore been.

An adverse possession for ten years conveys a title in the soil itself to the possessor; and it is supposed that it ought therefore certainly to convey an easement, which is a mere incident of the soil. There is a fallacy in this, and it consists in attributing to the possessor of the soil possession of an easement to which the soil is subject. The possession does convey that which was possessed, with its appurtenances: but possession of the servient estate conveys no title in the dominant one, and cannot affect an easement which appertained to the latter. All possible title in his own land the defendant may have got by enclosing and ploughing the road-bed : the same he would have got by cultivating any other part of his tract and holding it for ten years under color of title: the same he probably had by honest purchase before he commenced cultivation. He could be, as to the easement, in no better situation at the end of the ten years than at the beginning, or under a title acquired through the statute of limitations than under one conveyed to him by a former owner: — in every case, if his land was subject to the easement, it remained so, notwithstanding conveyance and change of possession, unless the easement was in some way destroyed. If he had in any way acquired title in the plaintiff’s land, he would have acquired the easement as an incident of that land, but no control over his own land could be a possession of the plaintiff’s, either substance or incident.

It is indeed inaccurate to speak of any obstruction, however real and visible, as a possession of an easement. Even those easements, the enjoyment of which includes a.continuous interference with another’s use of his soil, such as the easement of overflowing land, are not capable of actual possession apart, from their enjoyment. - More plainly, a right of way over another’s land, the enjoyment of which is only occasional, cannot be possessed by obstructing it. All easements are things incorporeal, — mere rights, invisible and intangible. The defendant ploughed his own soil, over which the plaintiff had a right to go, — but he did not plough the right of way.

I am of opinion, that the plaintiff’s action for any particular obstruction of his right was barred by the statute of limitations after four years, but that in case of a continuous obstruction whilst the right lasted, damages might be recovered for the four years nest preceding the commencement of the suit: that the plaintiff’s continued acquiescence in a visible and actual obstruction might afford evidence of his having abandoned his right, particularly if he turned aside, because of the obstruction, to any substituted way: but that no release of the easement could in ten years arise from the obstruction itself, any more-' than from mere non-user without obstruction.

The dicta and intimations which have been given to the contrary of this opinion, have never had the sanction of the Court, and are all outweighed by the case of Parkins vs. Dunham, 3 Strob. 224, and authorities there cited. See also 2 Saund. 175 a, note 2; Co. Lit. 114 b; Gayle & Whately on Easem. 257, 281, 275. In the case of Elliott vs. Rhett, (5 Rich. 419,) which was learnedly debated and carefully considered, all difficulty would at once have disappeared, if ten years obstruction could have been held to operate as a release of an easement.

Motion dismissed.  