David P. Buckson, Middletown, for plaintiffs.
James H. Hughes, III, Dover, for defendant.
[32 Del.Ch. 329] BRAMHALL, Vice-Chancellor.
Plaintiffs are the owners of a tract of land adjoining the farm of the defendant in Mispillion Hundred, Kent County, Delaware. This action was brought to enjoin the defendant from maintaining a fence across a right-of-way which plaintiffs claim the right to use, plaintiffs alleging a continuous, uninterrupted and adverse use thereof for a period of more than forty years. Defendant denies that plaintiffs have any right-of-way by prescription across his farm, averring that plaintiffs are trespassers.
On behalf of the plaintiff, Willard Hughes, one of the plaintiffs, testified that he had been using the right-of-way across defendant's farm since January, 1949. The witness further testified that he had used the right-of-way at various times since 1938, while in the employ of one Harry Greenberg. The witness Greenberg testified that he had had possession of a part of this farm since 1927 or 1928, when he rented a hog lot from a man named Wyatt, and sometime later, when he rented a part of the farm from a man named Pearson. He testified that he later purchased the farm. Other witnesses were called on behalf of the plaintiffs, who testified that there was a path across this property.
On behalf of the defendant the witness Joseph W. Ward testified that he was the owner and occupant of the farm of defendant from 1913 until 1943 and that he tilled the farm until a few years before the Sheriff's sale. He further stated that on different occasions he plowed up and planted the field on which the alleged right-of-way is located and planted crops thereon, including the right-of-way. He also stated that, although the right-of-way was at times used by adjoining farmers when he did not have crops planted there, it was not otherwise used. His testimony was corroborated by the testimony of his son.
The witness Lockwood Hopkins testified that he purchased the farm of plaintiffs sometime before 1930 and that he lived on the farm for one year. He stated that at times [32 Del.Ch. 330] the field upon which the right-of-way was located was occasionally used in winter, when no crops were planted thereon, but not otherwise. He also denied that any part of the farm had been rented to the witness Greenberg, although he admitted that Greenberg may have sub-leased a portion thereof from a tenant or tenants. His testimony as to the use of the farm was corroborated by other witnesses.
In order for the plaintiffs to establish their legal right by prescription to the use and enjoyment of the right-of-way over defendant's land, they must show a continuous, uninterrupted and adverse use thereof, by them or those in privity with them, for a period of more than twenty years. There must be no substantial interruption of the continuity of possession and enjoyment. See Johnson v. Stayton, 5 Harr. 448; Pennington v. Lewis, 4 Pennewill 447, 56 A. 378; Baynard v. Every Evening Printing Co., 9 Del.Ch. 127, 77 A. 885; Marta v. Trincia, 26 Del.Ch. 94, 22 A.2d 519. However, in order for the use of the right-of-way to be continuous, it was not necessary that plaintiffs use it constantly; they needed only to use it as their needs might require, although they must have used it at such frequent intervals as to give notice to the owner of servient tenement that such a right was being claimed. Stuart v. Johnson, 181 Md. 145, 28 A.2d 837; Jean v. Arseneault, 85 N.H. 72, 153 A. 819.
Plaintiffs' case depends upon the testimony of the witness Harry Greenberg. There is no other testimony in the case which will bring plaintiffs' claim within the period of time required in order to raise a presumption of a grant of the right-of-way. Greenberg testified that he used the right-of-way in 1927 or 1928, when he rented a hog lot from a man named Wyatt. He testified
[Copyrighted Material Omitted]
Deregibus v. Silberman, Furniture Co.,
121 Conn. 633
186 A. ...