Thomas v. England

Searls, C. This is an action to establish a right of way over the land of defendants, and to bar and-enjoin them from closing or obstructing the same.

The claim of plaintiff is, that on the first day of September, 1874, he entered upon the land over which the right of way is claimed, constructed a roadway thereon, and thence hitherto, until the 14th of February, 1884, maintained said roadway, and continuously maintained the same under a claim of right adversely to the defendants and their predecessors. ,

The answer denies the adverse user of the right of way, avers that it was by permission of the owner of the land, and states facts which, if true, would constitute a license from the owner to plaintiff.

Certain interrogatories were submitted to a jury, and passed upon by them. The court adopted these findings, and prepared others in addition thereto, upon which judgment was rendered in favor of defendants. Plaintiff appeals from the judgment.

Respondents move to dismiss the appeal upon the grounds: —

1. That it does not appear that the notice-of appeal was ever filed.

2. That it does not appear that the notice, if filed, was filed before the-filing of the undertaking on appeal herein.

The objections are met by the record and certificate of the clerk of the court below, showing the notice of appeal to have been filed October 18, 1884, and that the undertaking on appeal was filed the same day. The motion to dismiss should be denied.

In former times, prescription implied a claim to an incorporeal hereditament arising from the sarnie hav[458]ing been enjoyed for so long a time that there was no existing evidence as to the period when such user and enjoyment commenced.

Its origin must have been at a time “ whereof the memory of man runneth not to the contrary.”

Prescription, as known to the common law, applied to the manner of acquiring or losing a right by the effect of the lapse of time, as contradistinguished from the mode of acquiring title to a thing itself, by the effect given to a long possession or enjoyment of it.

The former applied to intangible rights capable of enjoyment without title to the thing out of which they flow or to which they attach, while the latter related to the thing itself.