Cox v. Forrest

Robinson, J., delivered the opinion of the Court. This is an action to recover damages lor obstructing a private right of way, claimed over the land of the appellee. In the absence of an express grant, it was necessary lor the plaintiffs to prove an adverse, exclusive, and uninterrupted enjoyment of the right of way in question for twenty years. By adverse is meant a user, without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right.

Where one, however, has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission. In other ⁸⁰ words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land, to show that the use of the way was by license or contract inconsistent with a claim of right. Bachelder vs. Wakefield, 8 Cush., 243 ; Hall vs. McLeod, 2 Metcalfe, Ky., 98; Garrett vs. Jackson, 20 Penna., 331; Tickle vs. Brown, 4 Ad. & Ell., 369; School District, &c. vs. Lynch, 33 Conn., 334 ; Hammond vs. Zehner, 23 Barb., 473 . By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under