This is an action of trespass quare clausum fregit. The defendant pleads, by way of justification, a right of way in his wife in the close in which, c., by twenty years adverse user or enjoyment, and that said supposed trespasses were simply acts committed under and in the exercise of the right, in the removal of obstructions thereto, erected by the plaintiff. The defendant also pleads a right of way in his wife by prescription.
The defendant at the trial submitted testimony to show that his wife was the owner in fee of a lot of land adjoining the gangway which was the locus in quo of the alleged trespasses, said lot having been conveyed to her in 1849, and that ever since 1849 she had uninterruptedly, quietly, peaceably, and openly used the gangway as a way for passing and repassing to and from her lot. The acts complained of as trespasses were committed June 30, 1872.
The action was commenced in July, 1872. Previous to the commencement of the action, to wit, April 12, 1872, an act was passed by the General Assembly, the first section1 of which is as follows, to wit:
"In all suits hereafter brought in which title to any easement in real estate shall be claimed by virtue of adverse possession of the same for the period of twenty years, or by prescription, the *Page 524 use of the same shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession shall be proved by evidence distinct from and independent of the use; and that the party against whom the claim is made had express notice thereof; and these provisions shall apply to public as well as private claims."
No evidence was submitted to show that the party against whom the easement was claimed had ever had any express notice of the claim. The plaintiff contended that without proof of such express notice the defendant's pleas in justification could not be maintained under the statute. The defendant contended that the statute, in so far as it applied to easements acquired by adverse user or prescription under the preexisting law, was unconstitutional and void, and requested the court so to instruct the jury. The court refused to comply with the request, and, on the contrary, did instruct the jury that the statute was constitutional. The defendant reserved an exception. The jury returned a verdict for the plaintiff. The defendant petitions for a new trial for error in the instruction.
We think the instruction was erroneous. Previous to the enactment of the statute no express notice was required, but the existence of a right of way could have been established by simply proving that the way had been used for twenty years uninterruptedly, peaceably, openly, with the knowledge and acquiescence of the owner of the fee, and under a claim of right; the claim of right, however, being inferable from the use adversely enjoyed, independently of any other proof. We are therefore at liberty to presume, and for our present purposes it is our duty to presume, that the right of way which the defendant had for twenty-years been exercising, and in that way claiming, had been completely acquired, so that he would have had no difficulty in establishing it but for the statute and its new requirements. In other words, we may assume that the right had become a vested right, indefeasible by the plaintiff, adding to the value of the estate to which it was appurtenant and alienable with it. Now the question is whether a statute passed after the right had been so acquired, which in effect destroys it by rendering it incapable of proof, is constitutional.
The plaintiff contends that the statute merely changes the *Page 525 rules of evidence, and that the legislature can do this at pleasure. The cases which he cites in support of this position are cases in which the changes were calculated to facilitate proof, not to render it impossible. Thus statutes making tax deeds prima facie evidence that the land conveyed by them had been legally sold, have been held to be constitutional. Such statutes simply facilitate proof, by changing the onusprobandi. They do not preclude the party who is unfavorably affected by them from establishing his right. Statutes have been passed, however, which undertook to make the tax deeds conclusive evidence, and these statutes, when brought to the test of judicial decision, have been pronounced unconstitutional and void, their effect being to take away vested rights of property without due process of law. McCready v. Sexton, 29 Iowa, 356;Abbott v. Lindenbower, 42 Mo. 162; Cooley Constit. Limit. 369. The statute under consideration, if it could be regarded as a statute which merely changes a rule of evidence, would be obnoxious to the same objection, for it so changes the rule as to make it impossible to establish a right which, previous to the change, could readily have been established.
The statute, however, does more than merely change a rule of evidence. It prescribes a new thing to be proved as well as a new way to prove it. It virtually extinguishes every easement acquired by adverse user or prescription, unless, by some fortunate occurrence, the owner of the servient estate had express notice, during all the twenty years that the use was under a claim of right. It takes away the right by refusing the remedy, except under an impossible condition; and it is just as unconstitutional to take away a vested right in that way as to do it in express terms. Conway v. Cable, 37 Ill. 82, 89; Davie v. McKeely, 5 Nev. 369; Hunt v. Hunt, 37 Me. 333; McLeod v. Burroughs, 9 Ga. 213; Proprietors of the Kennebec Purchase v. Laboree, 2 Me. 275.
Our opinion is that the statute, in so far as it applies to easements acquired previous to its passage, is in violation of the Fourteenth Amendment of the Constitution of the United States, which declares that no State shall "deprive any person of life, liberty, or property without due process of law." We are also of the opinion that it is a violation of the Constitution of the State, *Page 526 Article 1, Section 10,1 though grammatically the provision there seems to apply only in favor of persons accused of crime.Ervine's Appeal, 16 Pa. St. 256; Greene v. Briggs, 1 Curt. 311; Murray's Lessee v. Hoboken Land Co. 18 How. U.S. 272, 276. The statute is therefore pro tanto void.
1 Pub. Laws, cap. 976, § 1, April 12, 1872, incorporated in Gen. Stat. R.I. cap. 164, § 4.
1 This section is as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining them in his favor, to have the assistance of counsel in his defence, and shall be at liberty to speak for himself; nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land."