Hamblen v. Irish

105 A. 119, 117 Me. 522, 1918 Me. LEXIS 135

• Court: Supreme Judicial Court of Maine
• Decided: December 14, 1918
• Status: Published

Opinion

Philbrook, J.

Case on report. The plaintiff alleges trespass quare clausum, the acts complained of being those of crossing plaintiff’s land; and the defense is justification of the admitted acts by reason of a right of way gained by prescription. The defendant does not claim that he has used the way during the full prescriptive period, but claims that he and his predecessor in title have so done. But that predecessor in title was a witness in the case and testified that both he and his father before him were on friendly terms with the former owner of the lot over which the defendant claims the prescriptive way, and their crossing of the lot, or user of the way, was by permission and as a matter of accommodation. This testimony was not successfully overcome. Thus the important element of adverse user disappears and the defense fails. Rollins v. Blackden, 112 Maine, 459; Dartnell v. Bidwell, 115 Maine, 227. The plaintiff only asks nominal damages and the report contains a stipulation as to costs. The mandate will accordingly be,

Judgment for plaintiff.

Damages assessed at one dollar.

This decision to carry with it only the costs of the lower court.