Pollard v. Barnes

Wilde, J.

At the trial, the defendants moved to dismiss the action, on the ground that the third count was in trespass for breaking the plaintiff’s close, and so not within the jurisdiction of this court. This motion was overruled, and the plaintiff had leave to amend his declaration, by striking out the third count. That this motion was rightly overruled and the amendment allowed, is, we think, perfectly clear. The only remaining question to be decided is, whether the instructions to the jury, as to the proof necessary to entitle the plaintiff to the easement claimed, were correct.

The plaintiff introduced evidence tending to show, that from the fall of 1822 to the fall of 1846, the premises in dispute had been used as part of his mill yard, and for the purpose of laying logs thereon by his customers to be sawed at his mill; and cotradictory evidence was introduced by the defendants, tending to prove that for six years during that time the premises were not thus used.

Upon this evidence, the jury were instructed, “ that if the plaintiff had used and occupied the premises for the purpose of laying logs thereon, for twenty years during that period, exclusive of the year or years omitted, his omission to place logs upon the premises, during one or more years, would not be such an interruption as to prevent the plaintiff from gaining a right of possession, unless the jury believed, that the omission took place in consequence of an abandonment of his claim by the plaintiff.”

It has been argued in support of these instructions, that although the enjoyment of an easement or privilege, in orders to confer a title, must have been uninterrupted during the time required by law ; yet, that a mere non-user of such easement or privilege is not to be considered as an interruption. And it is true, as laid down in Gale & Whatley’s treatise on easements, “ that in those easements which require the repeated acts of man for their enjoyment, as rights of way, it may be sufficient, if the user is of such a nature, and takes place at such intervals, as to afford an indication to the owner of the servient tenement, that a right is claimed against him.”

But it is obvious, that the non-user in the present case does not come within this rule of law. The evidence tended to prove a total cessation of the enjoyment of the easement, and that for a long time; and the owner had good reason to believe, that the claim was abandoned; and if so, it seems immaterial whether the plaintiff had in fact abandoned his claim or not.

We think, therefore, that this is a case within the general rule as laid down in Gale & Whatley, p. 63, and which is supported by the authorities: — “ The continuity of enjoyment,” it is said, “may be broken, either by the cessation to use, or by the enjoyment not being had in the proper manner.” And so the rule is laid down by lord Lyndhurst, and by Parke, B., in Monmouth Canal Co. v. Harford, 1 Cromp. Mees. & Rosc. 614, 631. Parke, B., says: “ The issue is whether the occupiers of the closes of right, ” (that is, claiming a right,) “ without interruption, have had the use and enjoyment for twenty years, as they insist under this issue; therefore they must show an uninterrupted enjoyment for twenty years. If they had enjoyed for one week, and not for the next, and so oil alternately, their plea would not be proved.” So lord Lyndhurst says: “ The simple question is, whether there has been a continued enjoyment of the way for twenty years; and any evidence negativing the continuance is admissible.” The same principle of law is recognized in several subsequent cases. 4 Ad. & Ell. 383; 8 Ad. & Ell. 161; 2 Bing. N. C. 705. These cases were decided on the construction of the Stat. 2 & 3 Wm. 4, c. 71, which provides, that no claim for any right of way or other easement shall be defeated, when such way shall have been actually enjoyed by any one claiming right- thereto, without interruption, for the full period of twenty years. A similar provision is contained in our Rev. Sts. c. 60, <§> 27: that section provides, “ that no person shall acquire any right or privilege of way, air, or light, nor any other easement, from, in, upon, or over the land of another, by the adverse use thereof, unless such use shall have been continued uninterrupted for twenty years.”

-The same continuity of possession was required by the common law, whereby, a title by prescription cculd be acquired. “ But both to customs and prescriptions,” says lord Coke, “ these two things are incidents inseparable, viz., possession or usage, and time. Possession must have three qualities: it must be long, continual, and peaceable; longa, continua, et pacifica: for it is said (Bracton, fol. 51, 52) traitsferuntur dominio,, sine titulo, et traditions, per usucaptionem, soil, per longam, continuum, et pacificam possessionem, longa, i. e. per spatium temporis per legem definitum, of which hereafter shall be spoken. Continuum dico, ita quod non sit legitime interrupta. Pacificam dico, quia si contentiosa fuerit, idem erit quod prius, si contentio fuerit justa. Co. Lit. 113 b.

Whatever breaks the continuity of the possession and enjoyment of an easement, whether by a cessation to enjoy it, or by any act of the owner of the servient tenement, destroys altogether the effect of the previous user; and this is an interruption within the meaning of the Rev. Sts. c. 60, § 27.

And we are all of opinion, both upon principle and authority, that the plaintiff cannot entitle himself to the privilege claimed, unless he can prove a continual enjoyment of it for twenty consecutive years, without interruption. Whether the privilege claimed is an easement, within the meaning of the statute and the law, is a question which has not been raised and discussed, and upon which we give no opinion.

Exceptions sustained.