
    
      Margaret A. Lamb vs. Dr. William Crosland.
    
    Where a party claims a right to an easement through another’s land, by adverse use for twenty years, and during a part of tire time, though after the commencement of the adverse use, the land was owned by infants, that period must be deducted in the computation of the time, and if twenty years do not remain, the right is not established.
    
      Before Evans, J., at Marlboro’, Extra Term, 1850.
    This was an action on the case for obstructing a ditch.
    The lands of the parties were adjoining. The plaintiff’s land, in 1817, belonged to her husband, one Alexander Lamb. The defendant’s land, then, belonged to one Bartholomew Cosnahan. Near Lamb’s house were some ponds, which, in wet seasons, were filled with water, and produced sickness. Lamb asked and obtained permission from Cosnahan to cut a ditch through his land, for the purpose of draining those ponds. The ditch communicated with an old ditch, called the meadow ditch, by which the water' passed off into Crooked Creek. The land through which the ditch was cut by Lamb, was then woodland; it had since been cleared. The ditch had been kept open as a drain for Lamb’s land ever since, and worked on occasionally, when it suited the convenience of those who owned the land. The plaintiff was in possession of Lamb’s land. Lamb died in 1836. No evidence of how the plaintiff derived title was giver?; but it was understood, from the course of the testimony, tha; it had been sold for partition, and she was the purchaser. B. Crosnahan died in 1820, leaving a avkIoav and infant children, one of whom was not of age until 1841. After his death, the land remained in the possession of his Avidow and the administrator, until 1833, when it Avas sold for partition, and purchased by one E. Cosnahan, Avho sold it to one Feagin in 1836. From him it passed to Green. About 1843, he sold to Dudley, and Dudley to the defendant. In 1847, (in January,) in consequence of the lower part of the ditch not being kept sufficiently open, four acres of the defendant’s land, on the side of the ditch, were too Avet to plough. He sent to the plaintiff, requested her to open it, but she did not do it. In March, the defendant filled up the ditch Avith dirt and logs. Some negotiation took place, and the plaintiff opened the ditch, but, as it turned out, not sufficiently, for in July there Avere very heavy rains, and the Avater ponded on the four acres, and injured the growing crop. The defendant again obstructed the ditch. It remained so four days, Avhen the plaintiff’s son removed the obstruction. But in these four days, the com in the plaintiff’s pond Avas destroyed. For this injury the action was brought, and the sole question presented by the case Avas, whether the plaintiff had a prescriptive right to drain her land through this ditch. If she had, the defendant had no right to obstruct it. If she had not, then the defendant had a right to fill it up on his own land.
    Evidence was given on the question, Avhether the use had been adverse, or only permissive. That question was submitted to the jury, avIio found for the plaintiff.
    In his report of the case, his Honor, the presiding Judge, says:
    “ It Was very clear, that from 1820 to 1833, the land of defendant belonged to infants ; and there was not the slightest evidence to change the original character of the use, up to the death of B. Cosnahan. My own opinion, founded on a pretty full argument, made in the case of Boykin vs. Cantey, which I tried at Kershaw, was, that the presumption of title, arising from adverse use, did not arise when the owners were, at the time of its commencement, infants; and that, even in cases of intervening infancy, the presumption was suspended during infancy, for the presumption depends, not on the use alone, but the acquiescence of tie owner. In this case, there is no doubt about the facts. Thr use began in 1817, and continued to 1847, a period of 30 yen's. But during the time, the land belonged to infants 13 years, leaving only 17 years.' Entertaining this opinion, if I had left that point to the jury, they of course would have found for the defendant; but I did not feel at liberty, after having spent more than a day on the trial, to arrest the case by a non-suit, on an undecided point, and one of difficult solution. The case was sent to the jury on the other points, reserving to the defendant the right to renew his motion in the Appeal Court.”
    
    The defendant appealed, and now moved for a non-suit, or new trial, on several grounds ; the fourth ground for a non-suit was as follows:
    Because, admitting that the plaintiff had adverse possession for twenty-nine years, it was in evidence, that for thirteen years of this time, the proprietors of the servient tenement were infants, against whom an adverse possession could not grow into a right.
    Dudley, for the motion,
    contended that the possession was clearly permissive up to 1820, when B. Cosnahan died, and that an adverse possession could not commence between 1820 and 1833, when the owners of the land were infants. But if the Court should hold that, after the verdict of the jury, the possession must be taken to have commenced adversely in 1817, then he contended that the period from 1820 to 1833 must be deducted from the time. He cited 3 Strob. 450 ; 2 Rich. 136; Cheves’ Eq. 60; 1 Hill Ch. 378 ; 1 Tur.. & R. 107 ; 13 Pick. 184 ; 2 Day, 527; 2 Hilliard on Real Prop. 195 ; 2 Hill Ch. 50; 3 Gilm. 105.
    
      
      Thornwell, contra.
    It must be taken, after the vervict of the jury, that the possession commenced adversely in 1817. The question then is, whether the period that intervened from 1820 to 1833, during which the heirs of Cosnahan, except his widow, were infants, must be deducted in computing the time. Among the ancient cases, in which the questions were of prescription strictly, no one can be found in which infancy has been held to arrest the prescription. (17 New Hamp. R. 376.) But the modern rule is, that twenty years adverse possession raises the presumption of a grant. This is not a mere presumption of fact— it is conclusive of a right — it is a presumptio juris et de jure ; l Camp. 473 ; 1 B. & C. 401; 6 East, 208; 1 Green. Ev. § 15, 17; 2 Green. Ev. § 539. Whether a possession has been adverse — whether it has been exclusive — whether it has been continuous — whether it has been for twenty years, are questions of fact, but when they have been decided by the jury, the law comes in and holds the twenty years’ use to be conclusive of a right. Now infancy intervening can shew nothing against any one of those facts. Can it shew that the possession was not adverse 1 that it Was not exclusive 1 that it was not continuous ? that it was not for twenty years 1 Not at all. Where the commencement of the possession, therefore, was adverse, and against a party sui jtiris, subsequent infancy does not destroy the legal and conclusive presumption of title. (4 Mason, 401-2.)
    But if the presumption is one of fact, then the question must be submitted to the jury. The plaintiff makes out his case, by shewing an adverse possession for twenty years ; that raises the presumption that Cosnahan made a grant when the ditch was first dug. Defendant replies, by shewing Cosnahan’s death three years afterwards, and the infancy of his heirs; how can that even weaken the presumption of the grant ?
    But if the title is in an infant at the commencement of the possession, still, as the policy of the law is in favor of protecting long possessions, the presumption of a grant arises; a voidable grant, it is true, which the infant, within a reasonable time, may avoid. (2 McPher. on Infants, 541; 538.)
   Curia, per

Evans, J.

There are several questions presented by the brief in this case, but as the decision depends on the fourth ground for a non-suit, none of the other questions will be considered. That ground is in the following words, to wit, “ admitting that the plaintiff had adverse possession for twenty-nine years, thirteen years of this time the proprietors of the ser-vient tenement were infants, against whom an adverse possession could not grow into a right.” The facts of the case, necessary to be stated in order to understand this ground, are these. In 1817, the ditch, which was the subject of controversy, was dug by Lamb through Cosnahan’s land, by his permission or consent, for the purpose of draining some ponds on the land of Lamb. The ditch has been kept open ever since, until obstructed by the defendant, who now owns the land. In 1820, Cosnahan died, leaving a widow and infant children his heirs at law, one of whom was not of age until 1841. In 1833, the land was sold, under a decree of the Court of Equity, for partition, and purchased by one E. Cosnahan, from whom, by several intermediate conveyances, the defendant derives his title. The question arising on these facts is, whether the plaintiff, who is the owner of Lamb’s land, to drain which the ditch was dug, has acquired, by the use thereof, a right of drainage against the owner of the land. There is no doubt that, according to our law, as declared in a great many cases, the adverse use of an easement for twenty years will confer a right to the use of it, as fully as if a deed for it were produced and proved. In the ordinary transactions of mankind, we find that men are not disposed to allow others to exercise dominion over their property. When, therefore, we find that such dominion has been exercised for a long period, without objection on the part of the owner, it is reasonable to conclude that such use began in right, or it would have been objected to. This title is founded on the presumption of a grant, which time or accident has destroyed. But this is perhaps a legal fiction, which the law resorts to, to support ancient possessions, and to maintain what the acts of the parties shew they considered to exist.

There can be no doubt that, if Cosnahan had lived for twenty-years after the use of the ditch commenced, and Lamb had used it adversely, as the jury have found, the right would have been perfect; and I suppose it equally clear, that if the time before Cosnahan’s death, added to the time which elapsed after the sale in 1833, together, made the full period of twenty years, the right would be beyond dispute. For in both cases there would be an adverse use, and an acquiescence by those laboring under no disability, for the full period that the law requires to support the presumption of a grant.

In this case these two periods of time amount to only 17 years, and unless the presumption can arise against the infants, the twenty years is incomplete.

In McPherson on Infants, it is said, (p. 538,) “ It is a maxim of law, that laches is not to be imputed to an infant, because he is not supposed to be cognizant of his rights, or capable of enforcing them.” In Bacon’s Abridg. Title, Infant. G. (5 vol. 110) last edition, it is said: “ The rights of infants are much favored in law, and regularly their laches shall not prejudice them, upon the presumption that they understand not their rights, and that they are not capable of taking notice of the rules of law so as to apply them to their advantage.” The same doctrine is to be found in all the elementary writers from Coke to the present time. The presumption arises from the acquiescence of the parties interested to dispute it, and it would be difficult to assign a reason for drawing any conclusion from the acquiescence of an infant, who is supposed in law not to be cognizant of his rights, or capable of enforcing them. Accordingly we find, that in all the cases which have been decided, so far as I know, no presumption has been allowed against the rights of an infant, whether the question related to the satisfaction of bonds for the payment of money, or the performance of other acts, or to rights growing out of what Best calls a non-existing grant. In Boyd vs. Keels, decided in 1830, it was held that no presumption could arise that the condition of a bond of an administrator had been performed, because the distributee, to whom he was to account and pay over the money, was an infant. The same was affirmed in the case of Brown vs. McCall, (3 Hill 335.) In Gray vs. Givens, (2 Hill Ch. R. 514.) Judge Harper says, “ I think it has not been questioned, that the time during which the party to be affected has been under disability, must be deducted in computing the lapse of time, in analogy to the statute of limitations. Such was the case in Riddlehoover vs. Kinard, (1 Hill, Ch. R. 375.) If the possession were taken in early infancy, the title might be matured before the infant arrived at age, and before the statute of limitations had begun to run against him. The decisions have been numerous, and the practice habitual, and I am not aware of any doctrine or decision to the contrary.” We have no case involving the right to an easement, in which the question involved in this case has been decided by this Court. In Watt vs. Trapp, (2 Rich. 136,) Judge O’Neall, on the Circuit, expressed the opinion to the jury, that the presumption of a grant to a way would be arrested by infancy. But that point was not necessarily involved in the case, and this Court declined to express any Opinion, as, according to my recollection, it was not argued. In other States the question has been decided. In the case of Watkins vs. Peck, (13 New Hamp. R. 360,) it was held, that a grant cannot be presumed from the use and enjoyment of an easement for the term of 20 years, when the party, who must have made the grant if it existed, was an infant at the time of making it. This does not come up fully to the case under consideration, because in this case the grant, if any, must have been made coeval with the use, and that was in the lifetime of Cosnahan, who was adult. But that can make no difference, unless we apply the rule, which has been adopted in relation to some of the clauses of the statute of limitations, viz. that where the statute begins to run, it will not be arrested by any intervening disability. But this has not been contended for, and there is no semblance of authority to support it. This construction arises on a positive enactment, that the action must be within four years from the time the right of action accrued; whereas presumptions arise from the assertion of the right, and the acquiescence in it, during the whole period of twenty years, and how can it be said that the infants have acquiesced, when they were incapable of asserting their rights ?

But the case of Melvin vs. Whiting, (13 Pick. R,. 190,) was a case of intervening infancy. The plaintiff claimed a title to a several fishery, on the defendant’s soil, and relied, to support his title, on proof of an adverse, uninterrupted, and exclusive use and enjoyment for twenty years. The jury were instructed by the Chief Justice that, to raise such a presumption of conveyance, it must appear that such exclusive right had been used and enjoyed against those who were able in law to assert and enforce their rights, and to resist such adverse claim, if not well founded; and, therefore, if the persons against whom such adverse right is claimed, were under the disability of infancy, the time during which such disability continued, was to be deducted in the computation. of the twenty years ; and this construction was supported by the Court of Appeals. The only dictum which I have found to the contrary, is contained in the opinion of Judge Story, in the case of Tyler vs. Wilkinson, (4 Mason, 402.) The action involved the priority of right to use the water in Pawtucket river, and in no way involved the question of the rights of infants. The question which he was discussing was, whether the presumption from adverse use was a presumptio juris et de jure, a question of law to be decided by the Court, or a fact to be determined by the jury. In support of his argument, that it is a presumptio juris, he says.the right by presumption of a grant is not affected by the intervention of personal disabilities, such as infancy, coverture, and insanity. This dictum is noticed and disregarded in the New Hampshire case above referred to, and I may be permitted to say, without any disrespect to that great and learned Judge, that he did not bear in mind the distinction between a right claimed by prescription, and a presumption of right from a non-existing grant. The former requires a use beyond legal memory, the latter may arise within twenty years. Best on Presump. § 88; 3 Stark. Ev. 911,3d ed.; 2 Ev. Poth. 139.

We are of opinion, that the period of time during which the. infant heirs of Cosnahan were the owners of the servient tenement, is not to be computed as a part of the twenty years adverse use necessary to vest the easement in the plaintiff, and upon this ground the plaintiff should have been nonsuited on. the Circuit. It is therefore ordered that the verdict be set aside, and the defendant have leave to enter up a judgment of non-suit.

O’Neall and Frost, JJ., concurred.

Motion granted. 
      
      
         Best on Presump. p. 102, et se¡.
      
     