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Bushey v. Santiff

67 N.Y. St. Rep. 187 Court N.Y. Gen. Term Decision date 1895-05-04 English

Delivered by Martin, J.

Contents

Majority

p. 187
George Bushey, Resp’t, v. William Santiff, App’lt.
(Supreme Court, General Term, Fourth Department,
Filed May 4, 1895.)

Headnote

1. Basements — Prescription.
Where the user for the time requisite to create an easement or right of way over the land of another by prescription or user, has been open, notorious, visible, uninterrupted, undisturbed and under claim of right adverse to the owner, the latter is charged with notice thereof, and his acquiescence is implied.
3. Same — Defined line of travel.
A prescriptive right of way over another’s land generally, without any defined line of travel, cannot be acquired by either the public or an individual. ■
S. Same — Defense.
Where a party seeks to defend his trespass by setting up a prescriptive right, he is bound to show such right to the extent of user claimed, or his defense fails.
Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
Merrell, Reyel & Merrell, for app’lt; C. S. Mereness, for resp’t.

This action was for trespass in tearing down and breaking fences upon, and driving over, certain premises occupied

p. 188
"by the plaintiff, and to which he had the right of possession. The defense was that the defendant had a right to the use of an" easement or right of way across the farm or premises occupied by the-plaintiff, and that the alleged trespass consisted in using it, and in removing obstructions placed therein by the plaintiff. The only-question litigated upon the trial was whether the defendant and. those under whom he claimed had a right of way across the plaintiff’s premises. There was no claim or pretense that any such right of way existed unless it had been acquired by prescription or an uninterrupted user for twenty years.

To create an easement or right of way over the land of another by prescription or user, the user must be open, notorious, visible, uninterrupted, undisputed, under claim of right adverse to the owner, acquiesced in by him, and must have thus existed for a period of at least twenty years. Where, however, the user, for the-requisite time, has been open, notorious, visible, uninterrupted,, undisturbed, and under claim of right adverse to such owner, he-is charged with notice, and his acquiescence is implied. Parker v. Foote, 19 Wend. 309 ; Nicholls v. Wentworth, 100 N. Y. 455 ; Ward v. Warren, 82 id. 265 ; Hammond v. Zehner, 21, id. 118 ; Colburn v. Marsh, 68 Hun, 269 ; 52 St. Rep. 378 . A prescriptive-right of way over another’s land generally, without any defined line of travel, cannot be acquired either by the public or by an individual, and where a way is claimed by prescription, that there has been a certain and well-defined line of travel should be shown. Holmes v. Seely, 19 Wend. 507 , 511; Elliot Roads & S. 137 ; Railroad Co. v. Parker, 41 N. J. Esq. 489 ; Bryan v. City of East St. Louis, 12 Ill. App. 390 ; Owens v. Crossett, 105 Ill. 355 . The court submitted to the jury the question whether there had been such a user of the claimed right of way, and the jury found that there had not. A careful examination of the evidence renders it quite obvious, we think, that the question whether the defendant and those under whom he claimed had acquired, by user or prescription, a right of way across the premises in question, was for the jury. The evidence tended to show that, within eight years of the time of the trial, persons occupying the premises had locked up the gate across the claimed right of way next to the highway, and, when torn down, that it was nailed up again on one or two occasions. It also disclosed that at the point where the claimed right of -way reached the highway it was changed a distance of more than eleven rods during the time in which the defendant claims a, right of way was acquired by prescription, and that such change-was less than twenty years before the trial. As the defendant sought to defend his trespass by setting up a prescriptive right, he was bound to show such right to the extent of user claimed, or his defense failed. American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 253 ; 41 St. Rep. 531 .

As no other questions are raised by the appellant, it follows, we think, that the judgment should be affirmed. Judgment and order affirmed, with costs.

All concur.

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