Johnson v. Lewis, 14 S.W. 466 (Ark. 1885).
The appellant Johnson filed his complaint against appellees, Thomas and William Lewis, alleging that he was in possession, and had been for some time, of a small tract of land which is surrounded by the farm of the defendants in such manner as that there is no mode of egress from it to any public highway, or ingress from any public highway, except across and upon the land of the defendants. He further alleges that he, and those under whom he claimed, had been in the habit of crossing the lands of defendants, to and from the surrounded premises, for more than 12 years, whereby a right of way had accrued to him as an easement to his said lands by prescription. But he alleges that defendants had wrongfully and unjustly enclosed their said lands, stopped up the way where he had been crossing, and refused to permit the plaintiff to cross the same in any manner to or from his said premises; that he had planted on his said lands 12 acres of cotton and 10 of corn, which were lost to him on account of such unjust proceeding of defendants, and he claimed damages in that amount.
To this complaint the defendants filed a general demurrer. Subsequently this demurrer was conceded, and the complaint was amended by interlineation, but the record does not disclose what this interlineation was. To the complaint as amended, however, the defendants filed a general demurrer. At this stage of the proceedings William H. Bizzell petitioned the court to be made a party plaintiff, alleging that he was the owner of the lands described in plaintiff's complaint, and that the said plaintiff Johnson was his tenant; that the right of way across the defendants' lands claimed by his co-plaintiff Johnson was an easement incident to his said lands, which had existed and been enjoyed in behalf of himself, and those under whom he claimed, for more than 12 years, and was a right implied in the grant of said lands from the government; that being such owner, and in possession of said lands and right of way appurtenant thereto, he had rented the same to said Johnson for the year 1879, at the yearly rent of $75, which Johnson had agreed to pay him out of the crop to be raised thereon, whereby, and by reason of the statute in such cases provided, he had acquired a lien upon the crop of cotton and corn so planted thereon for the payment of such rent, but by reason of such unlawful conduct and doings of the defendants, said crop was wholly lost, and, Johnson being insolvent, he was wholly unable to collect his said rent, and that by reason of such wrongful acts he was deprived of the use of his lands, etc. Bizzell was made a party plaintiff upon his petition. His petition was taken as a part of the complaint, and defendants' general demurrer extended to the petition, as well as to the original complaint. The court after consideration sustained the demurrer, and dismissed the whole proceeding. The plaintiffs appealed to this court.
It is insisted by the appellants that the allegations in the complaint sufficiently state that the plaintiffs have been in the actual enjoyment of a right of way across defendants' lands for a length of time which would clothe them with a vested right in such way, and the demurrer, admitting the truth of these allegations, should have been overruled. It is further insisted that seven years, or the period of our statute of limitations for the recovery of real property, is the period in which the enjoyment of such way would ripen into a vested right of way which could not be taken away. We are of the opinion, however, that the pleadings do not raise or present the question of a right of way across these defendants' lands by prescription. A right of way across another's land, where it exists, is an incorporeal hereditament, which may be appurtenant to adjoining lands, or in gross, but such hereditament does not come within the statute of limitations applicable to land or real estate. A vested right to such way may be acquired by use for a sufficient length of time; but for any length of time to ripen into an independent right the way should be confined to a definite line. Its use should not only be open and notorious, but continuous for the whole period. It should be occupied and used as a right, and not merely as a favor or privilege granted by the owner of the servient lands. In other words, the right of way should be definite, continuous, and adverse to the owner. A right thus acquired was by the common law called "a right by prescription," which term was peculiar to incorporeal hereditaments. The right was founded upon the presumption of a grant, and no one could prescribe for an easement in another's lands, except where it had been used time out of mind, or, in the quaint language of the old authors, "for a time whereof the memory of man runneth not to the contrary." It was sufficient to defeat a claim for such an easement that there was a time when the exercise or enjoyment of the same did not exist. No presumption of a lost grant of a right of way or other easement would be tolerated at common law so long as a time could be shown when such easement was not in use. In subsequent times, however, and especially in this country, the law has been much changed, and the length of time within which such right may be established has been much shortened. In Massachusetts and other states, by repeated decisions, the time has been held to be 20 years, in analogy to the statute limiting an entry into lands. See Sibley v. Ellis. And other states have adopted by analogy the same rule. See Parker v. Foote; Curtis v. Keesler; Cooper v. Smith; and Tracy v. Atherton. In Wynn v. Garland, this court held that "an easement is a liberty, privilege, or advantage which one man may have in the lands of another without profit, and must be under a deed or by prescription." It further held that "though the grant of an easement is within the statute of frauds, and must be in writing, yet a parol grant executed will be upheld under the same circumstances, and on the same principles, that a parol contract for the sale of lands would be; as where the grantee made improvements in good faith under the grant, or expended money or capital in its enjoyment." We are not aware that it has ever been determined in this state as to what length of time the enjoyment of such an easement would create a vested right by prescription, nor is it necessary to determine the question here. We do not think the plaintiffs' complaint sufficiently defines such a right of way across the defendants' lands as would at any time ripen into a vested right. It fails to define any particular way by metes and bounds, but merely alleges a habit of crossing defendants' lands to and from their premises, without stating whether such crossing was even confined to any particular route or line. It fails to state whether such crossing was by right on the part of plaintiffs, or by mere license by the defendants; nor is it stated whether such way had been open and continuous for the whole period alleged. It is not alleged from whom either party derived title to their lands, and no state of facts is alleged from which an obligation on the part of defendants could arise to permit the plaintiffs to have a way across their lands. The plaintiffs, however, were not without remedy. We have a statute which prescribes the mode by which parties so circumstanced can have relief. By proceeding under this statute the plaintiffs could have had a right of way established, and we think they should have pursued this remedy. Affirmed.
BATTLE, J., did not sit in this case.
Notes:
1. This case, filed at November term, 1885, is now published by request, with others, in order that the Southwestern Reporter may cover all cases in the Arkansas Reports from volume 47, p. 1.
