Opinion
Decided April 2, 1929.
Title to an easement by prescription may be established under a claim of right originating in a parol grant or gift.
The question, whether ambiguous language of the true owner of land gave only a permissive use of a way or constituted a parol grant of a right of way should be submitted to the jury to determine the understanding and intention of the parties, in the light of all the attendant circumstances.
Upon a motion for a nonsuit the plaintiff is entitled to the most favorable construction of ambiguous language employed in a verbal transaction.
TWO ACTIONS OF TRESPASS, for obstructing the use of a right of way claimed by the plaintiff's intestate, across land of the defendants. Trial by jury. At the close of the plaintiff's evidence, the defendants' motion for a nonsuit was granted by the court (Oakes, J.), and the plaintiff excepted.
Prior to August 23, 1881, both the Walker and Wicasack premises were owned by one Taylor who, upon that date, conveyed the Walker place to Mary J. Walker. Upon January 14, 1916, her title was conveyed by her heirs to Ida F. Walker, the plaintiff's intestate, who commenced these actions before her death, which occurred November 14, 1925. There was evidence that the occupants of the Walker place had used the way in question openly, continuously and under a claim of right ever since the date of Taylor's deed. Adah Trull, a daughter of Mary J. Walker, testified that at about the time of the conveyance from Taylor, her mother tried to buy a little more land from him and "He said that you have the right of way, what more do you want?" The same witness also testified: "Well, we always went on Mr. Taylor's land. He gave right of way to barn . . . .He did give right of way to go in there and use this driveway . . . . He told us — He gave us a right of way. Q. Gave your mother right of way? A. Yes . . ."
George R. Scammon and Ernest L. Guptill, for the plaintiff.
Samuel W. Emery, for the defendants.
The only ground upon which the defendants seek to sustain the court's ruling is that "a mere permissive use of the land of another for any length of time confers no rights of continued enjoyment," and "The plaintiff's use of the way has always been by virtue of the permission of Taylor." The only basis for this contention to be found in the evidence is the testimony of Adah Trull, set forth above. If this testimony would justify a finding that Mary J. Walker commenced her use of the way under a mere verbal license or grant of permission from Taylor, it would also support a finding that Taylor undertook to give a parol grant of a right of way, and upon the motion for a nonsuit the plaintiff was entitled to have the evidence considered in the light most favorable to her. Stevens v. Company, 73 N.H. 159, 163. It is' settled law in this state that the use of an easement under a claim of right founded upon a parol grant may be adverse so as to establish title in the grantee by prescription. Wells v. Parker, 74 N.H. 193; 19 C. J., Tit. Easements, s. 55. "No reason is apparent why one may not as well claim to be the owner of land in his possession under a parol gift, as under a deed which for some defect in execution conveys no title . . . and when, as in this case, the parties employ language whose meaning is doubtful unless considered in connection with all the attendant circumstances, the question of their understanding of its effect, or their mutual claims in regard to it, should obviously be left to the jury." Wells v. Parker, supra, 196. The case of Taylor v. Gerrish, 59 N.H. 569, upon which the defendants rely, received careful consideration in the case last quoted, and was found to be entirely consistent with the rule set forth above. It follows that the court erred in ordering nonsuits in the cases at bar, and the order must be
New trial.
All concurred.