Hutton v. Ormando

THE COURT.

The plaintiff sued to have the defendant enjoined from obstructing a certain roadway or right of way on the defendant’s land over which the plaintiff claimed the right to pass, and to abate the obstruction erected by the defendant. The plaintiff declared upon a prescriptive right based upon sixty years’ adverse user. The court found in accord with the plaintiff’s declaration to the extent that such prescriptive and hostile use had begun more than eight years prior to the commencement of the action. From a judgment for the plaintiff as prayed the defendant appeals.

The plaintiff is the owner of a tract of land lying northerly of the defendant’s 12.99 acre tract. A railway right of way, running in a northwesterly and southeasterly direction, forms the southwesterly and northeasterly boundaries respectively of the plaintiff’s and the defendant’s lands. Formerly the tract owned by the defendant, the land owned by the plaintiff, and land lying south of the defendant’s and the plaintiff’s said lands, all belonged to members of the Hutton family. On November 23, 1928, the defendant’s land was deeded to him by Alfaratta Schuyler and George Schuyler, the daughter and son-in-law of the plaintiff, who had received it from Laura K. Keith, a sister of the plaintiff. It was in evidence that in 1870 a roadway had been opened leading from the tract now owned by the plaintiff, southerly across the railway right of way and over the southeast corner of the defendant’s land, continuing southerly along the westerly boundary of the land of Laura Keith for a distance of some 350 feet, and then easterly about 1120 feet to the Quito Road, which is a county highway. The portion of this roadway which thus crosses the extreme southeasterly corner of the defendant’s tract is twenty feet wide, twenty feet along its westerly boundary and nine and a half feet along its easterly boundary line. The plaintiff also owns a tract south of the Keith property which is reached by said roadway.

It was established that this roadway had been in almost constant use by the owners of these various tracts and their predecessors for many years. The description in the grant

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deed from the Schuylers to the defendant included the portion of the roadway in dispute. On January 23, 1929, the Schuylers, the Keiths, and the plaintiff and his wife' deeded to the defendant a “right of way for road purposes, over the existing rights of way, now in use, from that certain 12.99 acre tract conveyed by George Schuyler and Alfaratta Schuyler, his wife, to Vincenzo Ormando by deed dated November 20, 1928—to the Quito Road—a county highway”. The instrument particularly described the right of way as all of the private roadway from the southerly line of the railway right of way through the twenty-foot portion included in the grant deed to the defendant, and continuing southerly and easterly to the Quito Road. The instrument conveying this right to the defendant also contained the following language: “Said grant not to impair, curtail or infringe in anyway whatsoever the title, rights or privileges now held or acquired by others in above mentioned Rights of Way and private land.” The instrument was recorded in February, 1929.