Opinion
Decided February 27, 1931.
This is an action for the obstruction of a right of way claimed by the plaintiff across land of the defendant. The jury returned a verdict for the defendant and the case is before this court on the plaintiff's general motion for a new trial.
The parties were the owners of adjoining lots of land in Old Town. The defendant acquired title to her lot May 2, 1902, the plaintiff to his lot in 1891. The plaintiff claims a right of way over the defendant's land by prescription. As the plaintiff was one of the grantors in the deed to the defendant in which there was no reservation of any right in the defendant's land, a title by prescription must be based on an adverse use for twenty years since 1902.
The defendant admits that the plaintiff did pass and repass across her land, but contends that such use was promiscuous and general and was not confined to any definite way, that the use was not adverse but permissive, and that, if there was any adverse use, it was interrupted by the defendant during the twenty year period. To sustain these claims evidence was introduced. The testimony for the plaintiff and for the defendant was conflicting. The jury saw and heard the witnesses and in the absence of exceptions we must assume were properly instructed on the law. The determination of the issues of fact was peculiarly the province of the jury, and we see no reason for disturbing their verdict. Motion overruled. Percy Higgins, for plaintiff. Stanley F. Needham, George E. Thompson, for defendant.