Cox v. Forrest

delivered the opinion of the Court.

This is an action to recover damages lor obstructing a private right of way, claimed over the land of the appellee. In the absence of an express grant, it was necessary lor the plaintiffs to prove an adverse, exclusive, and uninterrupted enjoyment of the right of way in question for twenty years.

By adverse is meant a user, without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right. Where one, however, has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission. In other *80words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land, to show that the use of the way was by license or contract inconsistent with a claim of right. Bachelder vs. Wakefield, 8 Cush., 243; Hall vs. McLeod, 2 Metcalfe, Ky., 98; Garrett vs. Jackson, 20 Penna., 331; Tickle vs. Brown, 4 Ad. & Ell., 369; School District, &c. vs. Lynch, 33 Conn., 334; Hammond vs. Zehner, 23 Barb., 473.

By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others. It must be exclusive as against the right of the community at large.

Nor does the law mean by “an uninterrupted and continuous enjoyment,” that a person shall use the way every day for twenty years, but simply that he exercises the right more or less frequently, according to the nature of the use to which its enjoyment may be applied, and without objection on the part of the owner of the land, and under such circumstances as excludes the presumption of a voluntary' abandonment on the part of the person claiming it.

Now in this case there is no objection to the instruction granted by the Court, but the Court ought, at the request of the plaintiffs, to have instructed the jury as to what constituted an adverse and exclusive user, within the meaning of the law. And this was the object and meaning of their second prayer. If the plaintiffs, and those under whom they claim, had used the right of way for twenty years, without the license or permission of the defendant, and such use was confined to the plaintiffs and persons living on their farm, and persons having business with them, then such a user was adwerse and exchisive, and the Court ought so to have instructed the jury.

Where the right is thus established by an adverse, exclusive, and continued user for twenty years, it requires the same length of time for one to lose the right by abandonment or discontinuance. The Court erred, we think, in refusing the plaintiffs' second prayer, and the judgment must be reversed.

Judgment reversed, and new trial awarded,