Henderson v. Le Duke , 218 S.W. 655 ( 1920 )

The first assignment of error is that the trial court's finding of fact as to the use of the roadway entitled the appellant to a judgment under limitation as pleaded of both the 5 and 10 year statutes. The proposition made is that —

"The use of the alleged roadway as a footpath only would not show an intention to claim a roadway, and would not be notice to the owner of the land that a roadway was claimed."

The finding of fact on which the assignment is based is:

"That in the use of said roadway subsequent to the destruction of a bridge across a branch on said right of way the same has not been used by the said Mrs. M. A. Le Duke or her tenants or lessees in traveling over it with a wagon, but that they have gone over the same with their horses, cows, and in walking and in carrying their plows to said land, without any objection from W. H. Henderson until about 2 years ago."

According to the court's findings Mrs. Garrett made a conveyance of land to appellee's husband, and in this conveyance agreed to "give a road 20 feet wide from the old Tyler road to the S.E. corner of the above tract sold to the said M. Le Duke," and provided, "Said road sold to remain open permanently." When the appellant purchased his tract of land from Mrs. Garrett he had notice of the easement or dedication burdening the tract. The easement being created by express grant, it would be extinguished or destroyed, either by operation of law or by abandonment. But it is a well-established rule that without the intention of abandonment existing the mere nonuser of an easement created by grant will not work an extinguishment of the easement. And in this case the court's findings show the very contrary of nonuser or abandonment by the appellee. And it does not appear, we conclude, that there has been such a change in the use of the easement, or such misuse, as in effect to renounce the easement itself so as to extinguish it by any adverse possession by the appellant. The grant gave "a road 20 feet wide," but did not place any restrictions as to use in a special way, and did not provide for a forfeiture or termination if the full "20 feet" was not used. It was an unlimited passing of an easement for what may be considered a proper and reasonable use according to the circumstances. Under the terms of the grant the easement could be devoted as well to pedestrians as to wagons, and not be a misuser or change of use such as would extinguish the easement. And there being no abandonment or extinguishment of the easement by the appellee, no adverse possession by the appellant could be predicated upon the facts. We carefully considered the remaining assignments, and have concluded that they do not authorize a reversal of the case by this court.

The judgment is affirmed.