Matteodo v. Ricci

12 R.I. Dec. 60

• Court: Superior Court of Rhode Island
• Decided: November 21, 1934
• Docket: Eq. No. 12287
• Status: Published

Opinion

WALSH, J.

This is a bill for the purpose of establishing an easement in a strip of land twelve feet wide and some one hundred forty feet in length running between Ledge Street and Gillen Street in the City of Providence.

Petitioners’ testimony disclosed that the petitioners claimed ownership in fee 'Of this land from 1910 to 1933. In the latter year, our Supreme Court decided against the claim of ownership in fee by petitioners. No claim of easement in the premises was advanced by petitioners until after the Supreme Court’s decision. It is quite clear that the requisite period for acquiring an easement has not elapsed since 1933. We feel that a person cannot at the same tíme claim ownership in and an easement by prescription to, .the same piece of land.

For complainant: Charles R. Easton. For respondent: Judah C. Semonoff.

In re Bull, 15 R. I. 534;

19 C. J. p. 904, sec. 87;

Murphy vs. Welsh, 128 Mass. 489;

Cavanaugh vs. Wholey, 143 Cal. 164.

We also feel that where two parcels of land are occupied by the same person that there cannot be such use of one as .to create an easement by prescription in favor 'of the other.

19 O. J. p. 891 (9) ;

Innes vs. Ferguson, 21 Ontario Appeals, 323;

Thompson on Real Property, Vol. 1, page 492, sec. 379.

The time for acquisition of an easement by prescription cannot run while the dominant and servient estates are in the occupation of the same person, even though the occupation of the servient tenement be wrongful and without the privity of the 'true owner.

The bill of complaint is denied and dismissed.