Barbour v. Pierce

By the Court, Rhodes, J.: It is found that Pierce purchased the land over which the road in controversy ran, from Alfred Alford, without notice of the arrangement between Alford and Barbour respecting the road. Pierce, therefore, is not bound by the arrangement, as such; and Barbour, in order to succeed in maintaining his claim to the right of way, must show a right based upon adverse possession—or, as it is usually denominated, when applied to a way, prescription. That the right may become perfect by prescription, where the use began under a parol gift, is abundantly shown by the authorities cited by the appellant’s counsel. The authorities also sustain the position that the user, which had its origin in license or permission, may by prescription ripen into a perfect title; but in such case the user must have been exercised for the period prescribed by the Statute of Limitations, under a claim of right. This qualification is of, course applicable also where the right has its origin in a parol gift or sale.

It was found by the Court in the first case that Barbour, “ with the consent and permission of Alford, entered into the enjoyment of said right and roadway;” and it is also stated, among the conclusions of law, that Barbour “ took his interest in said roadway, and used the same, by the permission and with the consent of Alford; that his rights therein were acquired and held by license merely; and that plaintiff did not and could not acquire any rights, by reason of such use, by prescription or otherwise, which he could enforce against defendant, Pierce.” This latter, though found among the conclusions of law, is a fact, or perhaps more than one fact. Whether Barbour took or held his interest by grant, gift, or license, are questions of fact; and whether he acquired a right by prescription is also a question of fact. That the question of adverse possession or of prescription is a question of fact there can he no doubt. It [663]would not assist the appellant, Barbour, to leave that finding where the Judge of the Court below improperly placed it, for the Court neither found the prescription claimed by Barbour nor the elements going to compose it. The user is found; but it is not found that it was exercised under claim of right, or adversely to Alford.

In the second case the findings are substantially the same as in the first, in the respects we have mentioned. Hot only has the Court not found for Barbour on the issue of prescription, but has found against him in this as in the first case, though here again the finding is improperly called a conclusion of law. In the first case, the finding that he took and held by license merely negatives the possibility of an adverse holding; and in the second case the finding is directly against the adverse claim, and right by prescription, on the part of Barbour. We are, therefore, of the opinion that the appellant, Barbour, is not entitled to judgment, in either case, on the findings.