Seymour, J
The plaintiffs are a voluntary association and sue as such by virtue of a recent statute. The action is for obstructing an alleged right of way. In the first count of the declaration the way is described as being appurtenant to Bradley’s fish place and as leading from that place over the defendant’s land to a public highway. In the motion for a new trial it appears that the plaintiffs offered evidence to show that they owned a fish house, fish place, seine, &c., at Bradley’s fish place, and that they had a right to use the way by prescription or local custom or both.
It was conceded that the association had been made up of a succession of persons without corporate powers ; that the interest of these persons varied in amount from time to time; that all the five persons who started the business are dead; and that the persons who owned the land over which the way is claimed down to 1865 were themselves active members of the Bradley Fish Company and used the way to cart fish to their own land. The defendant became owner of the land in 1865, and has never been a member of the fish company, and has always since 1865 forbidden the plaintiffs the use of the alleged way.
Upon the conceded facts of which the foregoing is a synopsis, the Court of Common Pleas for New Haven county, before which the case was tried, charged the jury that as matter of law the use of the plaintiffs could not be adverse.
The defendant insists, in the first place, that upon the conceded facts there was no such continuity of user by the individuals who have, successively been members of the plaintiff association as to be evidence of a prescriptive right in the association. There is much force in this objection if the way claimed is to be treated as a way in gross or mere personal right, but it appears from the declaration and from the proof [144]*144offered by the plaintiffs, as the same is briefly stated in the motion, that the way was claimed as appurtenant to the Bradley fish place, of which place the plaintiffs claim to be owners, or to have an interest in it as owners of a fish house there.
We suppose it is clear that the user of successive owners of the Bradley fish place may be connected so as to be in law continuous, however frequent the changes of ownership. All that is required for this purpose is that the successive owners should be privies in estate. By user of owners thus succeeding each other a right of way may he acquired which will become appurtenant to the estate, accruing to those who are. the owners at the end of the period of prescription.
The defendant insists secondly, that the user upon the conceded facts could not be adverse, because the Dudleys, beingowners of the premises over which the way is claimed to be, were themselves during the entire period of the user active members of the plaintiff association. The question thus raised is of considerable interest and one which we do not find discussed in the books. ■ It is agreed on all hands that in general one cannot have and cannot acquire a right of way or other easement in his own land. Ownership of the fee merges all easements. No one can acquire rights against himself, nor derive rights from himself. The defendant insists that it follows from these elementary truths that the fish company, while the Dudleys were members of it, could not have, and could not acquire by user or otherwise, a right of way over the land of the Dudleys.
The point thus raised resolves itself into this general question, whether one’s own land may be subjected to an easement in favor of himself and another as joint owners of other lands. That is, whether a right of way appurtenant to the premises of A and B, may exist over the lands of A.
We think it clear, firstly, that such an easement may exist. If a way has become appurtenant to an estate, and the servient estate becomes the property of one who is also a joint owner with others of the dominant estate, the way is not extinguished. The manifest wrong which such a merger [145]*145would do to the owners of the dominant estate is a sufficient argument against the extinguishment, and the technical doctrine of merger carried to its fullest extent would extinguish only the right of him who has an interest in both estates. The right of the other joint owners would remain unimpaired, and thus the way would be preserved as appurtenant to the property, and when by sale or otherwise the owner of the servient estate ceases to be joint owner in the dominant estate, the temporary and partial merger would cease and be as though it had never been.
We think it clear, secondly, that an easement over A’s land in favor of A and B, co-tenants of other lands, can be acquired by grant. If A, the owner of blackacre, grants to B, who is joint owner with A of adjoining premises, a way over blackacre to be used by B and his heirs and assigns in common with A himself, and his heirs and assigns, as appurtenant to their common property, we do not see why such grant would not be effectual to subject blackacre to the easement.
Thirdly. If such an easement may be acquired by grant it-follows of course that it may be acquired by prescription, namely, by such user as shall be evidence of a grant. Under-these circumstances it is true that the use ought, more than in ordinary cases, to appear to be under claim of right. The interest of the Dudleys, in the case before us, in the business: of their associates, might lead them to permit a passage over their individual lands, and on the question of fact a jury might think the use should be referred to such permission rather than to a claim of right. But in point of law such user may be adverse. It may have been under the claim of a right of way appurtenant to the common property, which claim may have been clearly and distinctly asserted and have been unequivocally recognized as a just claim by the Dudleys. The question whether the use was or - was not thus adverse, was for the consideration of the jury as a question of fact under proper instructions from the court.
A question very similar to the one now under consideration arose in the case of Hickox v. Parmelee, 21 Conn., 86, and it [146]*146was there held that the Cogswells might by user impose a servitude upon their individual property at the outlet of Waramaug Lake in favor of several mill-sites on the 'stream below, one of which mill sites was owned by the Cogswells themselves. In that case the grantee of the Cogswell mill-site was held entitled, in common with the other mill owners, to the easement thus imposed. The arguments in that case were very similar to those urged by the defendant in this.
Several other questions were discussed at the trial, most of which are of no general interest and probably will not again arise, and on which we express no opinion.. One point however deserves careful consideration.
The plaintiffs asked the court to charge the jury “ that an open and continuous use of a way for fifteen years unexplained, is presumed to be under- a claim of right and adverse.” Washburn on Easements, chap. 3, sec. 81, is cited in support of this request, and the law is there stated in substantial accordance with the plaintiffs’ claim; but we think a jury might in many cases be misled by a charge in the words thus stated.
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Seymour, J
The plaintiffs are a voluntary association and sue as such by virtue of a recent statute. The action is for obstructing an alleged right of way. In the first count of the declaration the way is described as being appurtenant to Bradley’s fish place and as leading from that place over the defendant’s land to a public highway. In the motion for a new trial it appears that the plaintiffs offered evidence to show that they owned a fish house, fish place, seine, &c., at Bradley’s fish place, and that they had a right to use the way by prescription or local custom or both.
It was conceded that the association had been made up of a succession of persons without corporate powers ; that the interest of these persons varied in amount from time to time; that all the five persons who started the business are dead; and that the persons who owned the land over which the way is claimed down to 1865 were themselves active members of the Bradley Fish Company and used the way to cart fish to their own land. The defendant became owner of the land in 1865, and has never been a member of the fish company, and has always since 1865 forbidden the plaintiffs the use of the alleged way.
Upon the conceded facts of which the foregoing is a synopsis, the Court of Common Pleas for New Haven county, before which the case was tried, charged the jury that as matter of law the use of the plaintiffs could not be adverse.
The defendant insists, in the first place, that upon the conceded facts there was no such continuity of user by the individuals who have, successively been members of the plaintiff association as to be evidence of a prescriptive right in the association. There is much force in this objection if the way claimed is to be treated as a way in gross or mere personal right, but it appears from the declaration and from the proof [144]*144offered by the plaintiffs, as the same is briefly stated in the motion, that the way was claimed as appurtenant to the Bradley fish place, of which place the plaintiffs claim to be owners, or to have an interest in it as owners of a fish house there.
We suppose it is clear that the user of successive owners of the Bradley fish place may be connected so as to be in law continuous, however frequent the changes of ownership. All that is required for this purpose is that the successive owners should be privies in estate. By user of owners thus succeeding each other a right of way may he acquired which will become appurtenant to the estate, accruing to those who are. the owners at the end of the period of prescription.
The defendant insists secondly, that the user upon the conceded facts could not be adverse, because the Dudleys, beingowners of the premises over which the way is claimed to be, were themselves during the entire period of the user active members of the plaintiff association. The question thus raised is of considerable interest and one which we do not find discussed in the books. ■ It is agreed on all hands that in general one cannot have and cannot acquire a right of way or other easement in his own land. Ownership of the fee merges all easements. No one can acquire rights against himself, nor derive rights from himself. The defendant insists that it follows from these elementary truths that the fish company, while the Dudleys were members of it, could not have, and could not acquire by user or otherwise, a right of way over the land of the Dudleys.
The point thus raised resolves itself into this general question, whether one’s own land may be subjected to an easement in favor of himself and another as joint owners of other lands. That is, whether a right of way appurtenant to the premises of A and B, may exist over the lands of A.
We think it clear, firstly, that such an easement may exist. If a way has become appurtenant to an estate, and the servient estate becomes the property of one who is also a joint owner with others of the dominant estate, the way is not extinguished. The manifest wrong which such a merger [145]*145would do to the owners of the dominant estate is a sufficient argument against the extinguishment, and the technical doctrine of merger carried to its fullest extent would extinguish only the right of him who has an interest in both estates. The right of the other joint owners would remain unimpaired, and thus the way would be preserved as appurtenant to the property, and when by sale or otherwise the owner of the servient estate ceases to be joint owner in the dominant estate, the temporary and partial merger would cease and be as though it had never been.
We think it clear, secondly, that an easement over A’s land in favor of A and B, co-tenants of other lands, can be acquired by grant. If A, the owner of blackacre, grants to B, who is joint owner with A of adjoining premises, a way over blackacre to be used by B and his heirs and assigns in common with A himself, and his heirs and assigns, as appurtenant to their common property, we do not see why such grant would not be effectual to subject blackacre to the easement.
Thirdly. If such an easement may be acquired by grant it-follows of course that it may be acquired by prescription, namely, by such user as shall be evidence of a grant. Under-these circumstances it is true that the use ought, more than in ordinary cases, to appear to be under claim of right. The interest of the Dudleys, in the case before us, in the business: of their associates, might lead them to permit a passage over their individual lands, and on the question of fact a jury might think the use should be referred to such permission rather than to a claim of right. But in point of law such user may be adverse. It may have been under the claim of a right of way appurtenant to the common property, which claim may have been clearly and distinctly asserted and have been unequivocally recognized as a just claim by the Dudleys. The question whether the use was or - was not thus adverse, was for the consideration of the jury as a question of fact under proper instructions from the court.
A question very similar to the one now under consideration arose in the case of Hickox v. Parmelee, 21 Conn., 86, and it [146]*146was there held that the Cogswells might by user impose a servitude upon their individual property at the outlet of Waramaug Lake in favor of several mill-sites on the 'stream below, one of which mill sites was owned by the Cogswells themselves. In that case the grantee of the Cogswell mill-site was held entitled, in common with the other mill owners, to the easement thus imposed. The arguments in that case were very similar to those urged by the defendant in this.
Several other questions were discussed at the trial, most of which are of no general interest and probably will not again arise, and on which we express no opinion.. One point however deserves careful consideration.
The plaintiffs asked the court to charge the jury “ that an open and continuous use of a way for fifteen years unexplained, is presumed to be under- a claim of right and adverse.” Washburn on Easements, chap. 3, sec. 81, is cited in support of this request, and the law is there stated in substantial accordance with the plaintiffs’ claim; but we think a jury might in many cases be misled by a charge in the words thus stated. The instruction thus asked for directs attention to the mere feet of open and continuous use, and gives to that use the same significance under all circumstances, whereas it is obvious that the circumstances under which the use takes place may often have a controlling effect. Thus the condition of the land over which a way is used is often a very important matter to be taken into consideration in deciding whether the use is or is not adverse. Where land lies open to common and is uncultivated and passing over it works ho injury to the owner, the use might naturally be referred to consent, sufferance or implied license, whereas if the land were valuable and cultivated and the passing over it highly injurious to the owner, his acquiescence in such passing over it would be very significant. The relation in which the parties stand to each other may also often serve to indicate the character of the use; as where near relatives occupy adjoining premises and use each other’s .passways, it may bé, openly and continuously during a long life, such use would naturally be referred to consent and indulgence.
[147]*147In tlie case now under consideration the fact that the owner of the land over which the way is claimed was himself a member of the plaintiff association and largely interested in its business, might be, and we think is, an important matter to be weighed in deciding whether the use was adverse or permissive.
The circumstances of this class of cases are so varied, and it is so important that every circumstance should be taken into consideration, that we doubt the propriety of laying down universal and absolute rules of law as to the effect in evidence of particular facts. The party claiming title to an easement by user must of course satisfy the triers that the use was under claim of right and acquiesced in as such, and no doubt the fact of fifteen years open and continuous use is’ important evidence, and may in many cases, under the circumstances of the use, carry conviction to the mind of the trier that it was under claim of right; yet we think the force of the evidence is matter of fact, and that the law does not give to it any peculiar effect, and that we ought not to grant a new trial because the court below refused to. charge the jury in the manner requested by the plaintiffs.
The court however not only refused the plaintiffs’ request, but on the contrary instructed the jury as follows : — “ The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession and use in subordination to the title of the true owner.”
The rule has been laid down in these words where title to real estate is claimed by disseizin under the statute óf limitations, and we have no occasion to call in question its correctness as applicable to such cases. But in respect to the acquisition of casements by user we have already expressed our opinion against-the propriety of attempting to lay down universal and absolute rules, of law as to the effect in evidence of particular facts.
Whether long continued use of an easement is adverse or is in subordination to the title of the true owner is, we have already said, a matter of fact to be decided like other facts [148]*148upon evidence and upon the circumstances of each particular case. The burden of proof to show that it is adverse is on the party claiming rights under the use. We however see no reason why the proof may not be circumstantial as well as direct, nor any reason for requiring, ‘in-regard to it any greater amount of evidence than is necessary to prove other facts in civil causes. ' •., ; •
A new trial is advised.
In this opinion the other judges concurred.