Swedish Baptist Home of Rest of New York and Vicinity, Town of Huntington v. (Conn.)..

Wagner v. Philadelphia Rapid Transit Co. (Pa.)

471

860

Wahl, Smith v. (N. J.).

261

Where the parties in an action on the case for obstructing an alleged right of way stipulat: ed that, "if the plaintiffs have a right of way," judgment is to be awarded for them, the existence of a right of way was the only question submitted to the court, and its location was not involved.

[Ed. Note. For other cases, see Stipulations, Cent. Dig. § 27; Dec. Dig. 14(4).] 2. EASEMENTS PROPERTY."

2-PRESCRIPTION-"PRIVATE

"Private property," meaning property belonging to a private individual, and including church property, as distinguished from the prop erty of the state or a municipality, and also including property held for pious or charitable uses for a limited portion of the public, is subject to the doctrine of prescriptive easements. [Ed. Note.-For other cases, see Easements, Cent. Dig. § 3; Dec. Dig. 2.

Report from Supreme Judicial Court, Knox County, at Law.

Action on the case by E. M. Thompson and others against Hamlin B. Bowes. Heard on report. Judgment for plaintiffs.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

A. S. Littlefield, of Rockland, for plaintiffs. E. C. Payson and R. I. Thompson, both of Rockland, for defendant.

SAVAGE, C. J. This case comes before this court upon the following report: This is an action on the case by the owners of Moneka Block in Union to recover against the defendant for obstructing an alleged right of way. The defendant has built a building over the right of way claimed. The way claimed is around the east end of Moneka Block. The southerly line of said block faces Union common. Said way claimed is Church lot, so called, which church is a across land which is a part of the Free the laws of this state. duly organized and a regular parish under The block, church, surrounding land, and buildings are as shown on the plan. The said church was built in 1839, and that and the lot have up to within less than 20 years, been used for the church purposes. Moneka Block was built 36(1)-PRESCRIPTION-PRE- in 1857, and since that time the way in ques

For other definitions, see Words and Phrases, First and Second Series, Private Property.] 3. EASEMENTS 8(4)-PRESCRIPTION-USER.

The fact that others having occasion to do so used a way did not prevent plaintiffs from acquiring a prescriptive right of way for themselves.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 27-33; Dec. Dig. 8(4).] 4. EASEMENTS

SUMPTION AND BURDEN OF PROOF. An open, visible, continuous, and unmolested use of a way for 20 years or more inconsistent with the owner's rights and under circumstances from which his knowledge and acquiescence may be inferred will be presumed to be under a claim of right and adverse, and the owner, to avoid the acquisition of a prescriptive easement, has the burden of rebutting the presumption by showing that the use was permissive.

[Ed. Note. For other cases, see Easements, Cent. Dig. §§ 77, 78, 88, 89; Dec. Dig. 36(1).]

5. EASEMENTS USER.

2-PRESCRIPTION-ADVERSE

The use of a way across church property for the requisite period of time to acquire a prescriptive easement as against an individual owner, where the admission of the parties excluded any inference of permissive use, gave the user a legal right of way.

[Ed. Note.-For other cases, see Easements, Cent. Dig. § 3; Dec. Dig.

2.]

tion has been so used by the owners of said block as would give them a right of way if the property over which it is claimed were private property, unless the fact that others used it would prevent the acquisition of that right; it being admitted that the use by the plaintiff was not exclusive, but that others having occasion used it. The defendant contends that no right of way could be acquired across said church property. If the plaintiffs have a right of way, judgment is to be awarded for them for an amount suf

ficient to carry costs; otherwise judgment is to be entered for the defendant.

[1] The defendant objects in the first place that plaintiffs in their writ have not set out any right of way by limits and bounds, and have left the location of the claimed right indefinite and uncertain. But that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

question is not before us. The parties have stipulated in the report that, "if the plaintiffs have a right of way," judgment is to be awarded for them. The existence of a right of way is the only question submitted to the court; not its location.

in our opinion, be evidence of such exclusive use and claim of right. So would be any plain, unequivocal act indicating a peculiar and exclusive from that of others. But the fact that a parclaim, open and ostensible, and distinguishable ticular track or line was a little more worn and marked by travel than the general surface occasionally leveled a spot gullied by the rain, of the lot, or that the adjacent proprietor had could scarcely be regarded, independently of other proof, as indicative of a claim of right."

We do not question the soundness of this doctrine.

[2] It is admitted that the plaintiff's have used the way in such manner and for such length of time as would have gained for them a prescriptive right of way, if the land over which the right is claimed had been private property. By the phrase "private property" [4] But it will be noticed that the discuswe understand is meant property belonging sion in Kilburn v. Adams relates to the evito a private individual; for church prop-dentiary force of long and uninterrupted user erty is private property as distinguished from the property of the state or of a municipality, which is public property. Property held for pious or charitable uses, not for the whole public, but for a limited portion of the public, is private property, and, as such, we have no doubt, is subject to the application of the doctrine of prescriptive easements. Kinsell v. Daggett, 11 Me. 309; Kilburn v. Adams, 7 Metc. (48 Mass.) 33, 39 Am. Dec. 754; Burnham v. McQuestion, 48 N. H. 446; Society for the Propagation of the Gospel v. Sharon, 28 Vt. 603; Mowry v. City of Providence, 10 R. I. 52. Accordingly we hold that a right of way could be acquired by prescription across the church property.

[3] Was such a right of way acquired? Certainly the fact that others having occasion used it did not prevent the plaintiffs from acquiring the right for themselves. That needs no argument.

The space between the plaintiffs' building and the church edifice was about 16 feet wide. The exhibits which are made a part of the report show that the land in front of and about the church edifice, including that at the side of it over which the right of way is claimed, was open and uninclosed. And, this being so, the defendant relies large ly upon Kilburn v. Adams, 7 Metc. (48 Mass.) 33, 39 Am. Dec. 754, in which case Chief Justice Shaw, speaking for the court, said that, where a tract of land attached to a public building, such as a meetinghouse, and occupied with such house, is designedly left open and uninclosed, for convenience or ornament, the rule is that:

"The passage of persons over it, in common with those for whose use it is appropriated, is in general to be regarded as permissive, and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to inclose it, such use is not adverse, and will not preclude them from inclosing it, when other views of the interests of the proprietors render it proper to do so. And, though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply, unless there be some decisive act indicating a separate and exclusive use, under a claim of right. A regularly formed and wrought way across the ground, paved, macadamized, or graveled, and fitted for use as a way, from his own estate to the highway, indicating a use distinct from any

for a way of the uninclosed lands about an academy building, which, of course, would be the same in case of a church edifice, as in the present case. It relates to a presumption of a permissive use under an implied license. It points out that evidence of decisive acts of an adverse character are necessary to overcome the presumption of possession. It marks, to a certain extent, a distinction between the use of such lands and those of a private proprietor. The general rule sustained in most jurisdictions is that, where the claimant has shown an open, visible, continuous, and unmolested use for 20

years or more, inconsistent with the owner's rights, and under circumstances from which may be inferred the knowledge and acquiesto be under a claim of right, and adverse to cence of the owner, the use will be presumed the owner, so as to place upon the owner, in order to avoid the acquisition of a prescriptive easement, the burden of rebutting this presumption by showing that the use was permissive. Barnes v. Haynes, 13 Gray (79 Mass.) 188, 74 Am. Dec. 629; Blake v. Everett, 1 Allen (83 Mass.) 248; 9 Ruling Case Law,

781. See Rollins v. Blackden, 112 Me. 459, 92 Atl. 521. But, as held in Kilburn v. Adams, where the use is of the open and uninclosed lands about a quasi public building, as a church or academy, the presumption is otherwise, and the distinctively adverse character of the use must be shown to rebut the presumption of permission.

[5] Now, the distinction between Kilburn v. Adams and the case at bar is this: In this case the presumption arising from possession is not a factor. It is admitted that the use was of such a character as would give the plaintiffs a right of way as against an individual proprietor. Such a use was neces sarily adverse. The admission excludes any inference of permission. No presumption of permissive use is admissible. We must hold therefore that the plaintiff's use of the way has been adverse for the requisite period of time to acquire a prescriptive easement. And since, as we hold, such an easement may be acquired in the land of a church society, it follows that the plaintiffs have a legal right of way, and are entitled to judgment.