Cox v. Forrest

Obstruction to a Private right of Way — Essentials to a recovery — Adverse and Exclusive Use — Burden of proof — An uninterrupted and continuous enjoyment — Loss of the right of Way by Abandonment or discontinuance. In an action to recover damages for the obstruction of a private right of way claimed over the land of the defendant, it is necessary, in the absence of an express grant, for the plaintiff to prove an adverse, exclusive, and uninterrupted enjoyment of the right of way for twenty years. The use of a way over the land 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. By exclusive, the law does not mean, that the right of way must be used by one person only, 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 preclude the presumption, of a voluntary abandonment on the part of the person claiming it. If the plaintiffs, and those under whom they claimed, had used the right of way for more than 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, such a user was adverse and exclusive, and the Court ought so to have instructed the jury, upon the request of the irlaintiffs. When the right was thus established by an adverse, exclusive, and continuous user for twenty years, it required the same length of time for one to lose it by abandonment or discontinuance.

Appeal from the Circuit Court for Charles County. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the three following prayers: 1. If the jury find from the evidence, that the plaintiffs are possessed of the farm described in the declaration as “Part of Pomfret and St. Matthews,” and that they and those claiming under them, have been accustomed, for the more convenient occupation of said farm, to use and enjoy a certain way or road, as described in the declaration over the lands now claimed by the defendant to and from the public highway, or to and from a separate portion of the plaintiffs' land, openly and uninterruptedly for twenty years previous to the obstruction of said way here complained of; then, unless the defendant has proved that such use of said way was, by virtue of license or permission, from him or those under whom he claims, the jury will presume the existence of a right of way over said land in the plaintiffs; and if they further find that the defendant obstructed said way, so as to deprive the plaintiffs of the use thereof, they will find a verdict for the plaintiffs, awarding them such damages as the deprivation of said way for the time complained of, and the inconvenience and trouble resulting therefrom, may, in the judgment of the jury, entitle them to. 2. If the jury find from the evidence, that the use of the way in question in this case, has been confined to the plaintiffs, those living on their farm and claiming under them, and persons having business with the plaintiffs, and their tenants, this will constitute such an exclusive use as if continued openly and uninterruptedly for twenty years, without permission from those owning the land over which the road passed, will warrant the jury in presuming a right of way in the plaintiffs. 3. If the jury find that the persons holding and occupying the farm described in the declaration as “Part of Pomfret and St. Matthew’s,” have ever at any time heretofore used a way or road over the land now claimed by the defendant, openly and uninterruptedly for a period of twenty years, either as a means of communication with the public highway, or with a portion of said farm, and that the plaintiffs all were possessed of said farm, and were so possessed at the time of the obstruction complained of, and that the defendant obstructed said way so as to deprive the plaintiffs of the use thereof, then they will find for the plaintiffs, unless they also find that such use of said way was, by express permission of the defendant, or those under whom he claims, or that said way has been abandoned or the use thereof discontinued for a continuous period of twenty years. The Court (Ford, J.) refused said prayers, and directed the jury as follows : “ If the jury find from the evidence in the case, that the plaintiffs have used the road mentioned in the declaration for the period of tvrenty years, exclusively, adversely and uninterruptedly, then the plaintiffs are entitled to recover such damages as they may find from the evidence the plaintiffs have sustained by reason of the alleged obstruction; unless they shall further find that the said road was used by the permission of the defendant, or those under whom he claims, or that the said road was enjoyed in common with other citizens of said county.” The plaintiffs excepted, and the verdict and judgment being against them, they appealed.