This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
77. Card v. Cunningham,- Ala. - , 74 So. 335; Clarke v. Clarke, 133 Cal: 667, 66 Pac. 10; Illinois Cent. R. Co. v. Stewart,
265 111. 35, 106 N. E. 512 (unenclosed and unoccupied); Bowman v. Wickliffe, 15 B. Mon. (Ky.) 84; Conyers v. Scott, 94 Ky. 123, 21 S. W. 530, (But see Hansford v. Berry, 95 Ky. 56, 23 S. W. 665); Winlock v. Miller, 167 Ky. 717, 181 S. W. 330 (unenclosed woodland); Downing v. Benedict, 147 Ky. 8, 143 S. W. 756; Donnell v. Clark, 19 Me. 174; Davidson v. Nantz, 177 Ky. 50, 197 S. W. 520; Gibson v. Durham, 3 Rich. L. 85; Hutto v. Tindall, 6 Rich. L. 396; Schulenbarger v. Johnstone, 64 Wash. 202, 116 Pac. 843, 35 L. R. A. (N. S.) 941. Contra, in Pennsylvania and West Virginia Worrall v. Rhoads, 2 Whart. (Pa.) 427; Walton v. Knight, 62 W. Va. 223, 58 S. E. 1025. The Pannsylvania act of 1850 provides, however, that no right of way shall be acquired by prescription over unenclosed woodland.
78. Kilburn v. Adams, 7 Met. (Mass.) 33, 39 Am. Dec. 754; tors of churches, school housees and other quasi public buildings enclose their grounds and provide unlocked gates for passage, an adjoining proprietor cannot obtain title to a right of way by occasionally passing through the gates and over the enclosed land to his own premises.79
The presumption that the user of another's land was adverse may obviously be rebutted by evidence that the person exercising the user recognized the right the landowner to stop such user. And so the fact that the former apparently recognizes the latter's right to make the user less convenient, as by failing to object to the erection of a gate or bars over a way. may tend to rebut such presumption.80 The presumption that the user was adverse may also be rebutted by evidence that it was under permission or license, this in effect involving a recognition of the landowner's right to stop it. If the user was originally by permission, it is preburnham v. Mcquesten, 48 X. H. 446; Cobb v. Davenport, 32 N. J. L. 369; Howard v. Wright Nev. 23, 143 Pac. 1184; Plimpton v. Converse, 44 Vt. 155: Cincinnati Southern R. Co. v. Slaughter, 31 Ky. L. 913, 104 S. W. 291; O'neil v. Blodgett, 53 Vt -Witt v. Creasey, 117 Va. 872, 86 S. E 128; And see Cook v. Gammon, 93 Ga. 298, 20 S& E. City of Chicago v. Chicago. R. I. & P. Ry. Co. 152 111. 561, U 768.
A like rule appears to be applied in Hunter v. Emerson, 75 Vt. 173, 53 Atl. 1070, with reference to the right to enter another's land in order to take water from a spring. Compare Gentry v. Piercy, 175 Ky. 174, 193 S. W. 1017.
79. Menter v. First Baptist Church, 159 Mich. 21, 123 N. W.
And that this is the rule in the case of grounds attached to such buildings, if they are unenclosed, see Kilburn v. Adams, etc. (Mass.) 33, 39 Am. Dec. 734; Thompson v. Bowers, 115
Me. 6, 97 Atl. 1.
Prewitt v. Hustonville
Cemetery Co., 31 Ky. L. Rep. 125, 101 S. W. 892: Downing v. Benedict, 147 Ky. B, 143 S. W. 756;
Cahill v Mangold, 151 Ky. 156
151 S. W. 373; Moll v. Hagerbaumer, 98 Neb 151 N. W.
300; Howard v. Wright, 3S Nev.
25, 143 Pac. 1184; Peters v. Robertson, 73 Ore. 263. 144 Pac. 568; Schulenbarger v. Johnstone 64
Wash 202 116 Pac 843, 35 L.r. R.
A.( N S.) 941 Compare Moll v.
Hagerbaumer, 97 Neb 809, 153 N.
W 560; Demuth v. Amweg, 90 Pa.
Sumed to have so continued, in the absence of affirmative evidence of the assertion of a right to such user or a repudiation of the landowner's right to stop it.81
The user by another of a way or space laid out or left by the landowner, concurrently with its user by the latter, has occasionally been regarded as presumably by permission of the landowner;82 but whether such user is permissive would seem properly to be determinable with reference to all the circumstances of the case, more particularly the character and location of the way or place of passage. The mere fact that the owner of the land also passes in the same place or along the same line would not seem in itself sufficient and thus diligence would be punished and laches rewarded."93
81. Brandon v. Umpqua Lumber & Timber Co., 26 Cal. App. 96, 146 Pac. 46; Fightmaster v. Taylor, 147 Ky. 469, 144 S. W. 381; Louisville & N. R. Co. v. Cornelius, 165 Ky. 132, 176 S. W. 964; Flagg v. Phillips, 201 Mass. 216, 87 N. E. 598; Pitzman v. Boyce, 111 Mo. 387, 33 Am. St. Rep. 536, 19 S. W. 1104; Howard v. Wright, 38 Nev. 25, 143 Pac. 1184; Flora v. Carbean, 38 N. Y. Ill; Yeager v. Woodruff, 17 Utah, 361, 53 Pac. 1045; Witt v. Creasey, 117 Va. 872, 86 S. E. 128; Schulenberger v. Johnstone, 64 Wash. 202, 35 L. R. A. (N. S.) 941, 116 Pac. 843.
That one who purchases land mistakenly supposes that his vendor's user of adjoining land belonging to another was not permissive, has been held not in itself to make the vendee's user of the latter land adverse. Luce v. Carley, 24 Wend. (N. Y.) 451. 35 Am. Dec. 637; Yeager v. Woodruff, 17 Utah, 361, 53 Pac. 1045. But see Conaway v Toogood, 172
Cal. 706, 158 Pac. 200. In Toney v. Knapp, 142 Mich. 652, 106 N. W. 552, it was held that after a license of passage was revoked by the licensor's conveyance of his land, the subsequent user of the land for passage by the licensee and persons claiming under him was adverse. See the discussion in Editorial note, 5 Mich. Law Rev. 545.
82. Barker v. Mobile Electric Co., 173 Ala. 28, 55 So. 364; Manion v. Creigh, 37 Conn. 464; Gascho v. Lennert, 176 Ind. 677, 97 N. E. 6; Hall v. Mcleod, 2 Mete. (Ky.) 98; Anthony v. Ken-nard Bldg. Co., 188 Mo. 704, 87 S. W. 921; Howard v. Wright, 38 Nev. 25, 143 Pac. 1184; Peters v. Robertson, 73 Ore. 263, 144 Pac. 568; Sassman v. Collins, 53 Tex. Civ. App. 71, 115 S. W. 337; Harkness v. Woodmansee, 7 Utah, 227, 26 Pac. 291. So it has been said that when a space is designedly left open by the owner for his own convenience the presumption ordinarily is that the user to show that the user is permissive.83 There are several decisions to the effect that if two adjoining proprietors establish a way, for their mutual accommodation, upon the division line between the two properties, and each uses, for the purpose of passage, the part of the way on the other's land as well as that on his own, such user is to be presumed to be adverse.84
That the owner of the dominant tenement joined with the owner of the servient tenement in repairing the appliances by means of which the user was exercised does not show that the user is permissive and not adverse.84a