Submitted April 13, 1932.
Decided June 7, 1932.
Easements — Doorway in Party-wall — Quieting Title — Acquisition of Title by Prescription — Complaint — Evidence — Sufficiency — Presumptions — Inception of Use — Abandonment — Easement Ripening into Appurtenance — Manner of Divestiture of Title — Applicability of Doctrine of "Tacking" — Burden of Proof. Easements — Quieting Title — Doorway in Party-wall — Title by Prescription — Complaint — Evidence — Sufficiency. 1. Complaint in an action to quiet title to an easement in a doorway through a party-wall and a stairway leading to the second floor of plaintiff's building, acquired by prescription, held not open to the assertion of insufficiency as showing that the use of doorway and stairway was in its inception permissive, — in effect a revocable license; held, further, that the evidence showed that plaintiff's predecessor in interest began his use under a claim of right. Same — Prescription — When Presumption Obtains That Inception of Use Under Claim of Right — Burden of Proof on Defendant to Show Contrary. 2. Where there is no evidence as to the inception of the use of an alleged easement, the presumption is that it was under a claim of right, and in order to overcome that presumption and to save his title from the encumbrance of an easement, defendant servient owner has the burden of showing that the use was permissive only. Same — Title by Prescription as Effective as Though Evidenced by Deed. 3. The title to an easement acquired by prescription is as effective as though evidenced by a deed. Same — When Mere Nonuser Raises No Presumption of Abandonment. 4. Irrespective of how an easement was acquired, mere nonuser for a less time than that required by the statute of limitations for the perfection of the easement raises no presumption of abandonment. Same — In What Manner Only Right, After Easement Ripening into Appurtenance, may be Divested. 5. After an easement — in the instant case the right to use a doorway in a party-wall and a stairway leading therefrom to the second floor of claimant's premises — had become an appurtenance to the latter's property, his right, or that of his predecessor in interest thereto, could only be divested by deed, prescription or abandonment. Same — Statute Relating to Title by Prescription Applicable to Easements. 6. Section 6818, Revised Codes 1921, defining "title by prescription," applies to an easement in real property as well as to the fee. Same — Applicability of Doctrine of "Tacking" of Prescriptive Periods. 7. In an action seeking confirmation of an easement acquired by prescription, contention that the doctrine of "tacking" of prescriptive periods is inapplicable where no mention is made of the right claimed in the various deeds to the property may not be sustained, the doctrine being permissible when there is a privity between the successive users of the easement, and there is a sufficient privity as to the inchoate easement if the enjoyment thereof was continuous and under the same claim of title. Same — Prescription — Oral Assertions of Adverse User by Claimant and Predecessors in Interest Held Unnecessary Under Facts. 8. The fact that claimant of an easement, or his predecessors in interest, never asserted by word of mouth that he, or they, made use of it under a claim of right and adversely to defendant, held of no importance, oral communications to that effect not having been necessary under the facts.
Appeal from District Court, Beaverhead County, in the Fifth Judicial District; Benjamin E. Berg, Judge of the Sixth District, Presiding.
Messrs. Gilbert, Gilbert McFadden, for Appellant, submitted a brief; Mr. Theo. F. McFadden argued the cause orally.
Messrs. Rodgers Collins, for Respondents, submitted a brief; Mr. John Collins argued the cause orally.
Insufficiency of Complaint: The allegations of paragraphs 5-7 of the complaint [see opinion], show conclusively that the use of the doorway and stairway made by the plaintiffs and their predecessors was, in its inception, permissive and not adverse. According to these allegations, the door was inserted in the party-wall by the then owners of the latter, and the then owners of the party-wall were predecessors in interest of the respective parties hereto. When the door was inserted it was intended, not only by the plaintiffs' predecessors but also by the defendant's predecessors, that the same should afford the plaintiffs' predecessors and their tenants free passage in going from the plaintiffs' building to the defendant's building, and from the defendant's building to the plaintiffs' building, on any occasion.
The courts universally recognize and apply the rule that, "where a right as to land by prescription is claimed, the period required for the prescription to mature does not begin to run until some fact exists giving the party against whom the prescriptive right is set up a cause of action." (19 C.J. 875.) Where, as here, the use was permissive, in its inception, the law presumes the use continued permissive until facts are shown disclosing a distinct and positive assertion of a right to the use, hostile to the owner and brought home to him. ( Omodt v. Chicago, M. St. P. Ry. Co., 106 Minn. 205, 118 N.W. 798; 9 R.C.L. 778, 781.) Nowhere in the complaint can be found an allegation of fact disclosing a positive, or other assertion, by the plaintiffs or their predecessors, of a right to use the door or stairway hostile to the defendant or its predecessors, and brought home to them, and this omission renders the complaint fatally defective. It is true the complaint alleges that at all times since the buildings were constructed until the month of August, 1929, the plaintiffs and their predecessors used the door and stairway "continuously, openly, notoriously, exclusively, peaceably and adversely to the defendant and its predecessors in interest under a claim of right," but this allegation is insufficient to overcome the force of the presumption that the use continued permissive. ( Acton v. Culbertson, 38 Okla. 280, 132 P. 812; Zosel v. Kohrs, 72 Mont. 564, 234 P. 1089; 2 Bancroft on Code Pleading, 1153.) If it be assumed that the allegations of the complaint are sufficient to state a cause of action, we submit the evidence falls far short of making even a prima facie case in favor of the plaintiffs. In 9 R.C.L. 781, the rule governing the burden of proof where the use, as here, was permissive in its inception, is stated as follows: "If the use originates by permission or license, and an easement by prescription is claimed, the burden of proving that the permissive use had ceased and that the use for the necessary period had been adverse under claim of right is on the party asserting its existence, and in case of doubt it will be resolved against him." (See, also, 19 C.J. 889, 959; 9 R.C.L. 776; 1 Cal. Jur. 347.)
The cases relied upon to support the trial court's theory that when Stringham died, or Gardiner conveyed to Crow, or Crow conveyed to the Dillon National Bank, the permission to use the door and stairway was revoked, and that the use of the same thereafter by the plaintiffs' predecessors immediately became adverse, are the Michigan cases, First Nat. Bank v. Brooks, 204 Mich. 164, 169 N.W. 920, Burkhart v. Zimmerman, 239 Mich. 491, 214 N.W. 406, and Sallan Jewelry Co. v. Bird, 240 Mich. 346, 215 N.W. 349. While these cases fully support the trial court's theory, our search has failed to reveal a single decision from any other jurisdiction adhering to the doctrine laid down. An examination of the Michigan cases will disclose that even there the court recognizes the rule as a harsh one, "which courts are loath to enforce, where decision could possibly be made on other grounds." In the Brooks Case the court in effect said that it was bound to apply the doctrine, inasmuch as the same had been a rule of property in that state for over forty years.
A diligent search failed to disclose that this court has ever passed upon the proposition. We assume, therefore, that the question is a novel one in this state, and believe that the less harsh and more equitable rule laid down in jurisdictions other than Michigan will both appeal to and find favor with this court. In 37 C.J. 298, subject "Licenses," the author says: "A permissive license to use land may be continued by implication, notwithstanding a change of ownership, where the new owner makes no objection to the use." (See, also, 19 C.J. 889; Brandon v. Umpqua Lumber etc. Co., 26 Cal.App. 96, 146 P. 46; Luce v. Carley, 24 Wend. (N.Y.) 451, 35 Am. Dec. 637.)
The Doctrine of "Tacking" is not Applicable: The evidence discloses that the plaintiffs owned their premises and used the door and stairway in question during their ownership for a period of about two years, to-wit, from 1926 to 1929, approximately seven years short of the statutory period necessary to the acquisition of title to the easement claimed by adverse user. To make out the full ten-year statutory period, the plaintiffs necessarily sought to tack to their use of the door and stairway the uses made thereof by their predecessors in interest. The greatest interest any one of plaintiffs' predecessors acquired in the door or stairway, by his individual use thereof, was an inchoate right to the use, which, in no instance, had ripened into an easement at the time any of plaintiffs' predecessors conveyed to his successor. And, as not one of the plaintiffs' predecessors mentioned or attempted to convey his inchoate right to the use of the door and stairway, the inchoate right in each instance failed to pass, because, not having ripened into an easement and become legally appurtenant to the plaintiffs' premises, the same could pass with a conveyance of the latter only in the event specific words were used disclosing the intention of the grantor to convey the same. (19 C.J. 894.) Under such circumstances tacking is not permissible. ( Durkee v. Jones, 27 Colo. 159, 60 P. 618; Messer v. Hibernia Savings Loan Assn., 149 Cal. 122, 84 P. 835; Swazey v. Brooks, 34 Vt. 451.)
The evidence does not justify the trial court's findings and conclusions or the decree entered thereon, on any theory. To use the language of the supreme court of California in the case of Brandon v. Umpqua Lumber Co., supra: "Without detailing further, it may be said that there is an entire absence of those significant circumstances of hostile assertion usually found where adverse possession is claimed."
This is a case to which the doctrine of a lost grant applies with peculiar force. The consideration for the grant of an easement is accounted for; and the adverse user is ample to support that doctrine. In view of the user here shown, it is unimportant whether the grant was oral or written.
Although appellant contends that the use was initiated under a revocable license, it neither pleaded nor offered any evidence to support the contention. It seems clear that where hostile and visible user is maintained for the statutory period, the contention of a parol license is an affirmative defense. To the proposition that the burden of showing a revocable license is upon the defendant, see 19 C.J. 960; Glantz v. Gabel, 66 Mont. 134, 212 P. 858; Stetson v. Youngquist, 76 Mont. 600, 248 P. 196; Ferguson v. Standley, 89 Mont. 489, 300 P. 245; Cheda v. Southern P. Co., 22 Cal.App. 373, 134 P. 717; McDonnell v. Huffine, 44 Mont. 411, 120 P. 792; Coventon v. Seufert, 23 Or. 548, 32 P. 508; Chase v. Middleton, 123 Mich. 647, 82 N.W. 612; Holm v. Davis, 41 Utah, 200, 44 L.R.A. (n.s.) 89, 125 P. 403; Wendler v. Woodward, 93 Wn. 684, 161 P. 1043; Franz v. Mendonca, 146 Cal. 640, 80 P. 1078; Hendrickson v. Sund, 105 Wn. 406, 177 P. 808; Shaw v. Profitt, 57 Or. 192, Ann. Cas. 1913A, 63, 110 P. 1092.
Appellant denies knowledge of adverse user; but the owner of the servient estate may not close his eyes to the activities which are apparent to all. ( Ferguson v. Standley, supra; McDougal v. Lame, 39 Or. 212, 64 P. 864; Rude v. Marshall, 54 Mont. 27, 166 P. 298; Pioneer Min. Co. v. Bannack County Min. Co., 60 Mont. 254, 198 P. 748; Silva v. Hawn, 10 Cal.App. 544, 102 P. 952.)
Moreover, where the "grant, agreement, or contract purports to give a perpetual or unlimited right, and the grantee proceeds to enjoy the easement with that understanding, as a matter of unqualified right, such enjoyment is adverse." (19 C.J. 890.) If we assume, then, that the first use was "permissive" it was, for all that appears, an unlimited right. ( Berkey Gay F. Co. v. Valley City M. Co., 194 Mich. 234, 160 N.W. 648; Wortman v. Stafford, 217 Mich. 554, 187 N.W. 326; Outhwaite v. Foote, 240 Mich. 327, 215 N.W. 331; Naporra v. Weckwerth, 178 Minn. 203, 65 A.L.R. 124, 226 N.W. 569; Lucas v. Smithfield etc. Turnpike Co., 36 W. Va. 427, 15 S.E. 182; Gyra v. Windler, 40 Colo. 366, 13 Ann. Cas. 841, 91 P. 36; Texas P.R. Co. v. Scott, 77 Fed. 726, 37 L.R.A. 94, 23 C.C.A. 424; McElhone's Appeal, 118 Pa. 600, 4 Am. St. Rep. 616, 12 A. 564; Talbott v. Thorn, 91 Ky. 417, 13 Ky. Law Rep. 401, 16 S.W. 88; Jewett v. Hussey, 70 Me. 433; Stearns v. Janes, 94 Mass. (12 Allen) 582; House v. Montgomery, 19 Mo. App. 170; Nicholls v. Wentworth, 100 N.Y. 455, 3 N.E. 482; Arbuckle v. Ward, 29 Vt. 43; 9 R.C.L. 779.)
Assuming that the use originated in license, the result is the same. Stringham died prior to July 8, 1892; and Gardner conveyed the servient estate March 2, 1889. Either such death or transfer alone is sufficient to revoke a license. (17 R.C.L. 586; De Haro v. United States, 5 Wall. 599, 18 L.Ed. 681, 688; Eckerson v. Crippen, 110 N.Y. 585, 1 L.R.A. 487, 18 N.E. 483; Bruley v. Garvin, 105 Wis. 625, 48 L.R.A. 839, 81 N.W. 1038; Archer v. Chicago, M. St. P. Ry. Co., 41 Mont. 56, 137 Am. St. Rep. 692, 108 P. 571; Omaha Grant S. R. Co. v. Tabor, 13 Colo. 41, 16 Am. St. Rep. 185, 5 L.R.A. 236, 21 P. 925; Broads v. Mead, 159 Cal. 765, Ann. Cas. 1912C, 1125, 116 P. 46; Oravetz v. Cruson, 124 Wn. 384, 214 P. 828; Toney v. Knapp, 142 Mich. 652, 106 N.W. 552; Voorhies v. Pratt, 200 Mich. 91, 166 N.W. 844; Maple Orchard Grove etc. Co. v. Marshall, 27 Utah, 215, 75 P. 369; Gustin v. Harting, 20 Wyo. 1, Ann. Cas. 1914C, 911, 121 P. 522.)
Again, assuming that the user was initiated by license, the hostile use after revocation results in an easement the same as if a license had never existed. ( Eckerson v. Crippen, supra; Burkhart v. Zimmerman, 239 Mich. 491, 214 N.W. 406; Sallan Jewelry Co. v. Bird, 240 Mich. 346, 215 N.W. 349; Lechman v. Mills, 46 Wn. 624, 13 Ann. Cas. 923, 13 L.R.A. (n.s.) 990, 91 P. 11; Bowers v. Gilbert, 63 Utah, 245, 224 P. 881; Coventon v. Seufert, 23 Or. 548, 32 P. 508; Holm v. Davis, supra; Chase v. Middleton, 123 Mich. 647, 82 N.W. 612.)
Doctrine of "Tacking": The same rule, which applies to the acquisition of a fee by prescription applies also to easements. (19 C.J. 894.) In note 59 (a) the reason for the rule is thus stated: "There is no reason for making any difference in this respect between titles to land and titles to easements. If the title has its basis in a presumed grant, privity of user tends as strongly to prove such grant, as privity of seisin. Or, if the title has its basis, in considerations of public policy, for the quieting of titles, that policy applies as well to the adverse user of easements for twenty years, as to the adverse possession of land." (See, also, Montecito Valley Water Co. v. City of Santa Barbara, 114 Cal. 578, 77 P. 1113; Harding v. Cowgar, 127 Ind. 245, 26 N.E. 799; Faukboner v. Corder, 127 Ind. 164, 26 N.E. 766; Terre Haute, etc., v. Zehner, 15 Ind. App. 273, 42 N.E. 756; Matthys v. First Swedish Baptist Church, 223 Mass. 544, 112 N.E. 228. In a few jurisdictions, as in Vermont, where no statute similar to our section 6818, Revised Codes 1921, is shown, the rule seems to be that successive users may not be "tacked," without describing the easement, before the statutory period expires; but that appears to be a minority holding. Even where no such statute is shown to exist, the rule is that the several periods may be tacked. ( Graham v. Walker, 78 Conn. 130, 112 Am. St. Rep. 93, 2 L.R.A. (n.s.) 983, 61 A. 98; Coventon v. Seufert, supra; Rowe v. Wurster, 50 Cal.App. 196, 194 P. 725; Costello v. Sharp, 65 Cal.App. 162, 223 P. 567; Hare v. Craig, 206 Cal. 753, 276 P. 336; Funk v. Anderson, 22 Utah, 238, 61 P. 1006.)
Interruptions: An interruption will not occur without an intent on the part of the servient owner to terminate the user, nor by temporary or accidental suspension of the user. (19 C.J. 883.) This rule is universal. ( Cavanaugh v. Wohley, 143 Cal. 164, 76 P. 979; Murray v. Scribner, 74 Wis. 602, 43 N.W. 549; Chase v. Middleton, 123 Mich. 647, 82 N.W. 612.) Since the question of adverse possession is one of intention ( Lamme v. Dodson, 4 Mont. 560, 2 P. 298), its termination must likewise be one of intention. Smith v. Langewald, 140 Mass. 205, 4 N.E. 571, holds that nonuser alone for the statutory period is not conclusive of abandonment and will not extinguish an easement without use by the owner of the servient estate which is inconsistent with the easement.
After an easement has attached, it cannot be defeated by interruption short of statutory period, or by a definite showing of abandonment. (19 C.J. 885, 894, 956; 9 R.C.L. 775; Smith v. Worn, 93 Cal. 206, 28 P. 944.)
This is an appeal by defendants from a judgment in favor of plaintiffs.
In their amended complaint, the plaintiffs allege the ownership by plaintiffs and defendant, respectively, of two tracts of land fronting on Bannack Street in Dillon; that upon these adjoining tracts of land a two-story brick building was constructed in 1889 by the owners of the respective tracts, and that upon the property line dividing the same there was erected a party-wall by which the buildings are separated, and that the plaintiffs and defendant and their successors in interest have at all times since the construction thereof owned the party-wall. "5. That at the time said wall was constructed the then owners inserted therein a door at the second story of the building by which free passage was intended to be and was afforded to the respective owners, their tenants and all persons having occasion to pass from one of the buildings to the other; and also afforded a convenient passage from the second story of plaintiffs' said premises to Bannack street by means of the stairway hereinafter mentioned. 6. That within the defendant's premises above mentioned at the westerly side thereof and adjoining said party wall there was then constructed a stairway which has its base and entrance at Bannack street on the first floor, and extends therefrom to the second floor, terminating at the door described in paragraph 5 hereof. 7. That at all times since said buildings and stairway were constructed, and until the commission of the acts of which plaintiffs hereinafter complain, the plaintiffs and their predecessors in interest, their tenants and all persons having occasion to enter the upper story of plaintiffs' said building, used said door and stairway continuously, openly, notoriously, exclusively, peaceably and adversely to the defendant and its predecessors in interest under a claim of right; and that such use and right are valuable to plaintiffs and constitute an easement upon the premises of the defendant above described, and which easement is appurtenant to the plaintiffs' said premises."
It is then alleged that in the month of August, 1929, the defendant, without the assent of plaintiffs, closed and locked the only door by which the use of the stairway by the plaintiffs could be enjoyed, and likewise closed up the door in the party-wall leading from the upper story of plaintiffs' premises to the stairway, and all of the obstructions are still maintained by the defendant.
Plaintiffs prayed that plaintiffs be decreed to have an easement "through and upon" the stairway for the purpose of passage by plaintiffs and their tenants directly from Bannack Street to the second story of plaintiffs' premises; and that the title to the easement be established and forever quieted in the plaintiffs, and that defendant and all persons in privity with it be enjoined from in any way interfering with their use of the stairway.
By answer the defendant admitted its ownership of the tract of land alleged to be owned by it in the complaint, denied the right of the plaintiffs to use the stairway, and, in substance, asserted that it and its predecessors in interest had purchased the premises from the original owner who erected the building, without any knowledge that the plaintiffs or their predecessors in interest claimed an easement in the stairway or the right to use the same, and set forth that all of the conveyances purported to convey an absolute title to the premises claimed by defendant, and that the alleged right of plaintiffs was extinguished and lost by nonuser with intent to abandon the same for a period of more than ten years prior to April 1, 1928. The plaintiffs denied the affirmative allegations of the answer.
The case came on for trial before the court sitting without a jury.
To clarify the discussion, the two men who erected the  building, or buildings, were Stringham, plaintiffs' predecessor in interest, and Gardner, defendant's predecessor in interest. At the outset of the trial, counsel for defendant challenged the sufficiency of the complaint upon the assumption that paragraphs 5, 6 and 7 show that the use of the doorway and stairway by Stringham was, in its inception, permissive — in effect a revocable license. We do not see our way clear to take that view. There is no evidence to sustain it. We are unable to draw an inference to that effect. Reading the three paragraphs together it is more reasonable to infer that Stringham, as a consideration for constructing the party-wall, was to receive as of right free passage from his building by way of the stairway to Bannack Street. Otherwise, why should he have erected the party-wall, of which Gardner was to have an equal share, on the dividing line, and why should Gardner have built a stairway alongside the party-wall within his own premises terminating on the second floor at a doorway which the two cut through the wall?
The evidence tends to sustain the inference we draw. It shows that Stringham erected the party-wall at his own expense. It shows, not only that the doorway gave each of the owners access to the other's building, but also that it gave Stringham the only way to his upper story from Bannack Street. For approximately forty years Stringham and his successors in interest used the doorway in the party-wall and the stairway as a means of egress from Stringham's premises to Bannack Street, and of ingress to the premises from Bannack Street.
At some time between the completion of the buildings and June, 1892, Stringham died. His lots and the building thereon passed by administrator's deed to his widow. She, on March 6, 1895, conveyed the same to one Hammer, who, his wife joining in the deed, on September 27, 1897, conveyed the same to Gooch and Coon; Gooch, as tenant in common with Coon and as sole owner, owned and possessed the same until February 28, 1910, when he sold to one Potter. There were subsequent transfers, but this phase of the case may be summed up by saying that by mesne conveyances the title and possession of the premises finally rested in the plaintiffs.
Gardner and his wife on March 2, 1889, conveyed their property by warranty deed, without mentioning the door or stairway, to one Crow, who together with his wife on November 15, 1890, by warranty deed conveyed the same to the Dillon National Bank of Dillon. In this deed the grantors covenanted as follows: "And that the same are now free, clear, discharged and unincumbered of and from all former and other grants and uses, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever." The defendant through mesne conveyances became the owner of the Gardner property on July 12, 1929, and has owned and possessed the same ever since. Nothing is said in any of the deeds introduced by plaintiffs, or by defendant, respecting the party-wall, or the door therein, or the stairway. Apparently the upper floors of the respective buildings always were occupied continuously by their respective owners, personally or through tenants. Plaintiffs' predecessors were not interfered with until the situation arose which brought on this lawsuit, except in two instances, neither of which is of consequence.
The court, taking the view that Stringham's use of the stairway was permissive, found three occurrences, either of which would have revoked the permissive use, the last being in November, 1890: One was Gardner's conveyance of the property by a warranty deed which did not except therefrom the use of the stairway; another was the conveyance by Crow above referred to; and the other was Stringham's death. (17 R.C.L. 586, note 19; DeHaro v. United States, 5 Wall. 599, 18 L.Ed. 681; Sallan Jewelry Co. v. Bird, 240 Mich. 346, 215 N.W. 349; Burkhart v. Zimmerman, 239 Mich. 491, 214 N.W. 406; Eckerson v. Crippen, 110 N.Y. 585, 1 L.R.A. 487, 18 N.E. 443.) The court then found, upon the hypothesis of revocation of the permission, that Gooch had obtained an easement by prescription. In conclusion of law No. 2 the court declared: "The open, continuous, exclusive and peaceable and adverse use of the stairway and doorway in question by A.B. Coon and Charles Gooch from September 27, 1897, to February 28, 1910, as set forth in the foregoing findings of fact, became an easement appurtenant to the Stringham property during the ownership and possession of said property by Charles Gooch, and such easement has continued to exist ever since as an appurtenance to the Stringham property."
In our view the logical inference is that Stringham began his  use under a claim of right. In the absence of any evidence on the subject, the presumption under the circumstances shown here would be that Stringham held under a claim of right and not by license of Gardner, and the same is true as to the successors in interest of each. In order to overcome that presumption, thereby saving its title from the encumbrance of an easement, the burden is on the defendant to show that the use was permissive. (See Stetson v. Youngquist, 76 Mont. 600, 248 P. 196, 197; Ferguson v. Standley, 89 Mont. 489, 300 P. 245; Glantz v. Gabel, 66 Mont. 134, 212 P. 858; 2 Tiffany on Real Property, 2d ed., p. 2045; 1 Thompson on Real Property, sec. 475.) But if Stringham began by permission which was revoked, we think the court reached the right result. Under either theory, Gooch, who had title and possession under mesne conveyances from Stringham, occupying the upper floor of the Stringham building for more than ten years as tenant in common with Coon, and thereafter as sole owner, using the stairway as the court found, was the owner of the easement claimed.
"`Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all' (sec. 6818, Rev. Codes 1921; Rude v. Marshall, 54 Mont. 27, 166 P. 298; Hays v. De Atley, 65 Mont. 558, 212 P. 296, 298), and the  title to an easement acquired by prescription is as effective as though evidenced by a deed ( Babcock v. Gregg, 55 Mont. 317, 178 P. 284)." ( Stetson v. Youngquist, supra; Ferguson v. Standley, supra.)
"Peaceable," as used in the court's finding, means continuous and uninterrupted. (Bancroft's Code Pleading, sec. 805; Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 77 P. 1113; Stanley v. Schwalby, 147 U.S. 508, 37 L.Ed. 259, 13 Sup. Ct. Rep. 418.) Having obtained title to the easement it continued to the month of August, 1929. The interruption of the use by one Eva Collett for about a month after plaintiffs became the owners is of no consequence.
No matter how the easement was acquired, mere nonuser for a  less time than that required by the statute of limitations for the perfection of the easement raises no presumption of abandonment. (19 C.J. 944.)
After the right to use the doorway and the stairway, including  as an incident the right to pass through the door at the street, became an appurtenance to plaintiffs' premises, the right of plaintiffs or their predecessors in interest thereto could only be divested by deed, prescription or by abandonment, and there is no proof of either. As to abandonment, see Skelton v. Schenetzky, 82 Ind. App. 432, 144 N.E. 144; 19 C.J. 944; 1 R.C.L. 3; 9 R.C.L. 813.
In general, the elements essential to adverse possession sufficient to extinguish an easement are very similar to those involved in the acquisition of an easement by prescription.
In this state, section 6818, supra, applies to easements as  well as to fee ( State v. Auchard, 22 Mont. 14, 55 P. 361; Stetson v. Youngquist, supra).
Counsel for defendant argue that the doctrine of "tacking" is  not applicable here for the reason that no mention of the right to use the stairway is made in the various deeds. But the rule is that tacking of prescriptive periods is permissible when there is a privity between the successive users of the easement. The doctrine seems to be that there is a sufficient privity as to the inchoate easement if the enjoyment is continuous and under the same claim of title. (Washburn on Easements and Servitudes, 159; 1 Thompson on Real Property, 519; 2 Tiffany on Real Property, 2d ed., p. 2067; Leonard v. Leonard, 7 Allen (Mass.), 277; Coventon v. Seufert, 23 Or. 548, 32 P. 508.)
Counsel further argue that, if plaintiff and their  predecessors in interest ever used the stairway under a claim of right and adversely to the defendant or its predecessors in interest, such user was not communicated to anybody. But in view of the court's findings, amply supported by the evidence, we think no communication by word of mouth was necessary. We fail to see any merit in this argument. (See Rude v. Marshall, supra; Pioneer Min. Co. v. Bannack Gold Min. Co., 60 Mont. 254, 198 P. 748; Ferguson v. Standley, supra.)
The excellent brief of defendant's counsel is grounded upon the theory that the use of the stairway by plaintiffs and their predecessors in interest was permissive, and they cite many well-considered authorities which they argue rule this case. But we think the authorities cited are not applicable to the conditions here. In practically every case they cite on the point they seek to make, there was testimony directly showing that the user was permissive. Even so, where it is shown that the permission has been revoked and the facts disclose that after the revocation an easement has been acquired by adverse possession, as the court found here, the authorities are ample to sustain the court's judgment. Where the user begins under a claim of right, the theory to which we incline, the authorities leave no doubt as to the correctness of the court's conclusion.
The judgment is affirmed.
ASSOCIATE JUSTICES GALEN, FORD, ANGSTMAN and MATTHEWS concur.