
    Pavey v. Vance et al.
    ' Easement — Egress and regress through land of another — Right by prescription — Right will pass by conveyance or descent of land.
    
    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 burthen 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 twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription. to its use as an incident to his,/and ; and the right will pass by a conveyance or descent of the land.
    (Decided March 30, 1897.)
    Error to the Circuit Court of Highland county.
    Suit was brought in the court of common pleas of Highland county by the Vances to enjoin the defendant, 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 titleto his lands from Penelope Evans, who acquired. it from Benjamin Barr ere, now deceased. That defendant had not tice 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 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 Barerreand his successors in ownership, during all of said period of time, as a farm road throngh 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 ñt, 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 askingdeave 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. Bar rere.); 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 oí 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 obstruction. 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.
    
      Ilenry A. Pavey, for plaintiff in error.
    We contend that there is error in the conclusions of law found by the Court in this, viz :
    That at least three of the essential elements of fact requisite to support Vance’s .claim to a prescriptive right-of-way over the Barrere premises (subsequently owned by Pavey) were not found to exist, viz: That the user of the
    right-of-way by the Vances was had by them for more than twenty-oñe years imder any claim of right. That it was exclusive, or that Barrere or Evans had knowledge of or acquiesced in any “claimof right ” made by the Vances or their predecessors.
    To constitute an easement by prescription it must appear that the enjoyment of the use was not only adverse but under a claim of right. uBoth of these elements must exist according to the current of authority in connection with the prescribed period of enjoyment to create a right by prescription.” Lembeck v. Bye, 47 Ohio St., 150; Washburn on Easememt 150 (cited), Tootle v. Gliflin, 22 Ohio St., 247; Young v. Spangler, 2 O. Circuit Court Rep., 549; Washburn on Easements, 86.
    We find that the constituent elements of an easement by prescription, are
    1. Adverse possession.
    2. The possession must be under a claim of right.
    
    3. Possession must be exclusive.
    4. It must be continuous and uninterrupted.
    5. It must be with the knowledge and acquiescence of the owner of the estate sought to be subjected to the use.
    6. All of the foregoing conditions must, in this state, have existed for more than twenty-one years before such right is established, and they must have existed concurrently.
    .It is not averred in the petition of the plaintiffs that the use which they claim to have énjoyed was under any “claim of right,” asserted for twenty-one years, nor was it claimed or shown or found by the Court that Barrere, Evans or any one owning such estate prior to Pavey’s purchase of it had any knowledge of or acquiesced in such claim of right.
    ■ The statement that Pavey at the time he purchased the [place had notice of the claim of D. J. Vance, has no significance as it is not claimed that he acquiesced in it.
    The Court find that for more than twenty-one years before Pavey became the owner of the Barrere place, the Vances had used the roadway described “without let, or hindrance, or obstruction from Benjamin Barrere in his lifetime, or Penelope Evans or their tenants. ’ ’
    There was merely a tacit permission, if any, on the part of Barrere and Evans that their neighbor might use, in common with themselves, their farm road.
    It is not found or claimed by the Vances that their use was exclusive for any length of time.
    . The conclusions of the Court that the burden of showing that the use -of such road-way was under some license or grant, was on the defendant has certainly never before been held to be the law in this state, whatever may have ( been the holdings of courts in other states. Nor do we think such proposition can be sustained by sound reasoning, as applicable in any .event, in a young commonwealth like our own just emerging, or emerged from the conditions of pioneer life and customs, when every bridle path was used by neighboring owners in common. Hence the tacit permission by a kindly and obliging neighbor to the use by his neighbor, (who asserts no hostile claim of right) of a right-of-way, as in this case raises no presumption of a g-rant.
    
      Charles II. Collins, for defendants in error.
    In regard to an easement as passing over another man’s land, where one uses the easement whenever he sees fit without asking leave and without objection it is adverse. Garrett v. Jackson, 20 Penn. St. 335.
    And the mere inattention of the owner of the land, that an easement in it is used by another ■does not weaken the force of the adverse possession. Beimer v. Stuber, 20 Penn. St. 464.
    If a right of way becomes incident to the enjoyment of certain premises — a dwelling house for example — it may be used as a means1 of approach to or departure from the same by any one having occasion to do so. State v. McDaniel, ■3 Jones L. 284; Barnstable v. Thatcher, 3 Met. '245.
    “Proof of an adverse and uninterrupted use of a way for twenty years (twenty-one in Ohio), with the knowledge and acquiescence of the owner of the land, is sufficient to establish an incumbrance upon land without proof of an express claim of the right by the persons using the way or of an express admission of the right by the owner of the land.” Blake v. Everett, 1 Allen (Mass), 248. Arbuckle v. Ward, 29 Vt., 43; Steffy v. Ccmpenter, 37 Penn. St. 41; Lehigh Valley R. R. Co. v. McFarland, 30 N. J. Eq., 180; Ballard v. Dyson, 1 Taunt, 1. 279; Parks v. Bishop, 120 Mass., 340; Sloan v. Holliday, 30 L. T. (N. S.,) 757; Williams v. James, L. R., 2 C. P., 577; Durey. Heathcote, 25 L. J. (N. S.,) Exch. 245; Coke Litt. 114b; 2 Inst. 653-654; Canhcmn v. Fisk, 2 O. & J. 126, per Bayley, B.; Carr v. Abster, 3 A. D. & Kl. N. S., 581; Demuth y. Amiveg, 90 Penn. St., .181; Wallace v. Fletcher, 10 Foster, 448; Bodfish y. Bodfish, 105 Mass., 317; Carr y. Foster, 3 Q. B., 581; Esling ■ y. Williams, 10 Penn. St., 126; Garrett y. Jackson, 20 Penn. St., 335, and Reimer y. Stuber, 20 Penn. St.., 464 ; Battishill y. Reed, 18 O. B., 696; Ingraham y. Hougfy, 1 Jones (N. C.), 39; Hoag y. Delorme, 30 Wis., 594; Carlisle y. Cooper, 4 C. E. Green, 262; 3 Kent’s. Commentaries, 444; Dodge v. Stacy, 39 Vt. 558; Kent v. Waite, 10 Pick., 138; Sargeani y. Ballard, 9 Pick., 251; Williams y. Nelson, 23 Pick., 142; Leonard y. Nelson, 7 Allen, 277. See also Carmody y. Mulrooney, 89 Wis., 552; (58 N. W. Rep., 1109.) Lewiston y. Procter, 27 111., 417. Rogerson v. Shepard, 33 W. Va., 307; Hesperia Land, etc., Co. v. Rogei'S, 83 Cal., 10; Middleton v. Newport, 16 R. L., 319; Winston y. Johnson, 42 Minn.., 398; O' Daniel v. O'Daniel, 88 Ky., 185; McKenzie y. Elliott, 134 111., 156; Garland y. Furber, 47 N. H., 304; I-Ioups y. Aldersori, 22 Iowa, 162; Maxioelly. McAfee, 9 B. Mon., 20; Welsh v. Wilcox, 101 Mass., 163; Foote y. Manhattan Ry. Co., 12 N. Y. Sup., 516; 125 N. Y., 380; 42 Minn., 298; 61 Penn. St., 21; Wash, on Easements. 134; 15 Hun., 600; .1 Sumner, (U. S.), 402; 10 Pet., 54; 10 Pick., 138; 6 Cush., 254; 15 Johns., 447; 12 Vt., 123; 17 Wis., 1; 35 Conn., '288; 27 Col. 366; 20 Ohio, 401; 42 Inch, 44; 104 111., 455; 27 Tex., 74; 3 Rawle, 492; Goocltitle v. Walker, 1 Burrow, 133; Peck v. Smith, 1 Conn., 103; Cortelycm v. Von Bront, 2 Johns. (N. Y.), 357; Lewis v. Jones, 1 Pa., 336; Jackson v. Hathaway, 15 Pa., 447; Perley v. Chandler, 6 Mass., 454; Pillsbury v. Brown, 82 Me., 450 ; Phillips v. Dressier, 122 Ind., 414; Atkins v. Board-man, 2 Mete., 457'; Williams v. Safford, 7 Barb., 309; Staple v. Hayden, 2 Lcl. Ray., 922-,Ackreyd v. Smith, 10 C. B., 164; Ledyard v. Morey, 54 Mich., 77; 13 Atl. Rep., 81; Barnes v. Haynes, 13 Gray, 188; Marion v. Creigh,.Wl Conn., 462; Harrison v. Pike, 4 W. L. B., 156; Harrison v. Creighead, 4 W. L. B., 500; Converse v. Hawkins, 31 Ohio St., 209; Metzger v. Hohoick, 1 Ohio Decisions, 396; Can-ham v. Fisk, 2 C. & J. 126, per Bayley, B.; Carr v. Foster, 3 Ad. & EL, N. S., 581; 3 Rawle, 492; 125 N. Y., 380; 26 N. E. Rep., 471; 10 Pick., 138; 42 Minn., 398; (45 N. W. Rep. 958;) 61 Penn. St., 100; Am. Dec., 597; 42 Ind. 44; 104 111. 455; 1 Sumner U. S., 402; 10 Pat., 54; 6 ’Cush., 254; 29 Tex. 74; 15 Johns 447-74 (94 Am. Dec., 260); 12 Vt., 123; 27 Cal., 366; 17 Wis., 1; 43 Indiana; 35 Conn., 228; Garrett v. Jackson, 20 Penn. St., 335; Blake v. Everett, 1 Allen (Mass.), 248; State v. McDaniel, 8 Jones Law R., 284; Lehigh Valley R. R. Co. v. McFarland, 30 N. J. Eq.,180; Peck v. Smith,, 1 Conn., 103-147; 15 Hun, 600; 13 Atlantic Reporter, 81; 42 Ind., 44; 104 111., 455; Welsh v. Wilcox, .101 Mass., 163; Ball v. Herbert, 3 T. R., 253; 37 Vt., 312; 29 Texas, 74 (94 Am. Dec. 260); O'Daniels. O'Daniel, 88 Kentucky (10 S. W. Rep., 638); Diffendal v. Midland R. R. Co., 86 W. Va., 459 (10 S. E. Rep., 536); Ashley v. Ashley, 4 Gray, 197; Miller v. Gar-
      
      lock, 8 Barb., 153; Chalk v. M'Alily, 11 Rich., 153; Williams v. Nelson, 23 Pick., 141; Yard v. Ford, 2 Wms. Saund, 172; Blake v. Everett, 1 Allen, 248; Bicard v. Williams, 7 Wheat., 59; Hammond v. Zehner, 21 N. Y., 118; Boliver Mg. Co. v. Neponset Mg, Co., 16 Pick., 241; Calvins. Burnet, 17 Wend., 564; Olney v. Fenner, 2 R. I., 211; Pue v. Pue, 4 Ind. Ch. Dec., 386; WorrallY. Rhoades, 2 Whart., 427; Polly v. Pic All, 37 Ala., 30; Perrin v. Garfield, 37 Vt., 310; Union Water Co. v. Crary, 25 Cal. 509; School District v. Lynch, 33 Conn., 334; Pierce v. McCloud-, 42 Penn. St., 102; Nash v. Peden, 1 Speeres, 22.
   Minshall, J.

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 twenty-one years prior to the time the defendant acquired his title to the land, D. J. Vance the predecessors in title of the plaintiffs, and his family, “in going to and from his farm and dwelling to the turnpike, and others going to and from said pike to Vances’, has passed over the lands of defendant, using a way or road through defendant’s farm as a foot-way, wagon-way, carriage-way, horse-back way and for hauliug produce to and from said Vance farm, without let or hindrance or obstruction” from the defendant’s predecessors in title. The plaintiffs’ claim is based on a title by prescription to the roadway, on the facts found. Easements of all kinds are said to lie in grant and not in livery; for the reason that, according to feudal ideas, they could not be created by livery, as livery would destroy the seizin of the owner of the land subject to the easement. But as a right to that which an individual has long used and enjoyed as his own without disturbance has ever been agreeable to a sense of natural justice, the courts of England at an early day adopted the fiction of a lost deed in support of easements that had been enjoyed by the owner of the dominant estate and those under whom he claimed, for a period beyond the memory of man. This was first fixed at a time beyond the reign of Richard I. But by reason of the remoteness of the period, the proof became more and more difficult — if not impossible; and finally the courts adopted a shorter period of twenty years, in analogy to the limitation in possessory actions. Still in this state of the law, as the title rested upon the presumption of a lost deed, the courts held that it might be rebutted, so that long- possession still continued subject to this contingency, and might be overthrown by a showing that it commenced and continued without deed. This however is no longer the general doctrine. Washburn on Easements, 4th Ed., 130-135; Railway Co. v. McFarlan, 43 N. J. L., 605; Tracy v. Atherton, 36 Vt., 503. Where an easement, as a way, is now shown to have been used by an owner of land over the land of another for the requisite period, without interruption with all the incidents of ownership, the fact of such use is accepted as conclusive proof of the right. The extent of the right is determined by the nature and extent of the use. It is said, ‘‘Every species of prescription by which property is acquired or lost is founded on the presumption that he who has had a quiet and uninterrupted ¡possession of anything for a long period of years is supposed to have a just right thereto, without which he could not have been suffered to continue so long’ in the enjoyment of it.” Brown’s Institute of the whole law, 418.

This is the principle of the civil law from which title by prescription is derived. It must not be confounded with usucaption, which simply, by the lapse of a short time, cured defects in titles otherwise good. Prescription was not regarded as a source of title, but as a means of defense against the assertion of an originally superior title, one that would have prevailed but for the consideration given -to long time possession. It would seem that this was made available by the magistrate so framing the formula as to confine the inquiry of the judge to the simple question of long time possession ; and this was done by writing- the limitation before the intentio, hence the significance of the term “prescription” which from its etymolog;y means a writing before. The prescription was inserted for the very purpose of excluding any other inquiry as to the rig’hts of the party claiming thereunder, than such as arose from long- possession of the land in the character of owner. Sander’s Justinian, Introd. Section 104; Hunter’s Roman Law, 288; Poste’s Gaius, 581.

But it is not material on which ground we regard a right to an easement by prescription rests, whether on that of a grant presumed from lapse of time, or from the justice and policy of protecting one who has long used and enjoyed a right in the character of owner, the practical result is the same: the party so using and enjoying the easement is adjudged as possessing the right in connection with his land as an incident thereto.

The substance then of a title, by prescription, whether it relate to the land or an easement in it, is the use and enjoyment of the land, or the easement, for the requsite period as an owner. No inquiry beyond this is required. The establishment of the claim, however, necessarily requires proof that the use was adverse to the real owner, and under a claim of right. Without such proof one could not be said to possess or use as an owner. Nor would the claim be consistent with a case where the possession is taken and held under the license or permisión of the real owner. But in the case of an easement it is not required that the use should be exclusive of the owner of the servient tenement. The latter may use a way in connection with the owner of the dominant tenement, as the two uses are consistent; and the owner of the servient tenement may maintain gates thereon where such was his custom during the period of prescription. The use made of the way and the mode of its enjoyment during this period, determines the extent of the right acquired and its limitations. Washburn on Easements, 135. These views are fully sustained by the authorities cited by counsel for the defendant in error.

In this case the finding shows that the use made of the way was adverse to the owner of the land. It prevented him from cultivating it as he might otherwise have done, or from making any use of it inconsistent with the right of way as used. It also appears that it was under a claim of right, as it was used without “let or hindrance” and “without asking leave. ” These circumstances are sufficient to show that it was under a claim of right. It is not necessary that it should have been made to appear that the party using the way, verbally asserted the right to do so when using it. This may appear from conduct as well as words ; using a way without asking’ leave imports a claim of right to do so. It may be stated as a general rule, that where a person uses a way in the enjoyment of his own land through the land of another, without let or hindrance, for the period of twenty-one years, in the absence of anything to the contrary, he thereby acquires a right by prescription to continue the use as an incident to his own land, and which will pass by a conveyance or descent of it. The fact of the use is open to explanation. It may be shown to have been permissive. But in such case the burthen is upon the owner of the land to show that the use was a permissive one. Garett v. Jackson, 20 Penna. St., 331; O'Daniel v. O'Daniel, 88 Ky., 185. If the rule were otherwise, the burthen of proof would be placed on the party holding the negative, which is seldom, if ever, done in civil suits; for it is easier to prove an affirmative than a negative. Such evidence may have been offered, but the court evidently found, in this regard, against the defendant, in finding that it was without “let.” The evidence is not incorporated in the record, and the finding must govern the disposition of the case.

Judgment affirmed.  