Bodfish v. Bodfish

105 Mass. 317

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Ames, J.

1. The defendant, at the time of the alleged trespass, was occupying the homestead estate with its appurtenances, both by the consent of the heirs at law of her deceased husband, (who were the only parties entitled to object,) and also in her right as his widow, under the provisions of Gen. Sts. a. 90, § 7. Almy v. Crapo, 100 Mass. 218.

2. The question submitted to the jury was, as to the existence of the right of way appurtenant to the homestead, under which she justified the alleged trespass. Her claim was, that the owners of the homestead had acquired that right by adverse user; and the only controversy as to the instructions of the presiding judge was as to the continuity of user necessary to establish the right. It is certain that “ continuous use ” does not necessarily mean “ constant use.” A right of way means a right to pass over another’s land more or less frequently according to the nature of the ose to be made of the easement; and how frequently is immaterial, provided it occurred as often as the claimant had occasion or chose to pass. It must appear not to have been interrupted by the owner of the land across which the right is exercised, nor voluntarily abandoned by the claimant. Mere intermission is not interruption. The continuity of the enjoyment may be shown by circumstantial evidence ; and, in the language of the presiding judge, it is sufficient if the jury find such repeated acts of use, of such a character and at such intervals, as afforded a sufficient indication to the owner of the land that the right of way waa claimed against him, and if they find that the way had been used in each of the twenty consecutive years, they would be justified in finding the continuous enjoyment, even though the defendant had not given evidence of actual use in each year of the twenty. This is merely another mode of saying that the circumstances may be such as to satisfy the jury that the use was continuous, even though direct evidence of actual use as to one or two years in the series may be wanting. Carr v. Foster, 3 Q. B. 581. Washburn on Easements, 100. Exceptions overruled.