By the Court,
The court below erred. The enjoyment and exercise of this and the like easements must be adverse, in the exact sense that the possession of land must be so to warrant the application of the statute of limitations in ejectment. This we held in Colvin v. Burnett, 17 Wend. 564.
The simple proof of an exclusive and uninterrupted enjoyment is prima facie evidence of its being adverse; but it may be under no claim of right, but by mere courtesy or on temporary permission, or even under a demise from the plaintiff. The proposed proof tended to rebut the inference of an adverse holding.
It is indeed true that on the plaintiff resuming the cross-examination, the witness answered that he did claim no right in any other way than that he thought he had a right, because he did no damage. This is claimed to have been a waiver of the exception, and indeed it does come near to all the plaintiff could probably have got by his proposed questions; non constat however, that he was allowed to propound them, as he had proposed. The answers might have been strengthened had the counsel been allowed to inquire into the right itself, in connection with the claim of right. When the court came to charge the jury, the question whether the holding was adverse, or intended as merely in subordination to the plaintiff’s rights, was not mentioned. It may be said that it was not fairly raised. But this may be for the very reason that the questions proposed were withheld. To make out a waiver, it should be clear, and not leave us in doubt, whether the party was not prejudiced. The cause should be tried on the principle that to protect himself, the defendant is bound to show an adverse enjoyment; a claim of right; no matter on what reason, whether as having a title, or under a belief that his right was a negative one, arising from a clear conviction that he could hurt nobody ; but it must be adverse; and the plaintiff ought not to be prevented from addressing all proper questions to
The judgment is reversed, a venire de novo to go from the court below; the costs to abide the event.