Vieth v. Dorsch

Plaintiff’s first contention on appeal is that defendant forfeited his easement over the west eight feet of her lot by asserting title by adverse user in his counterclaim. We cannot agree.

While the counterclaim is not altogether clear, it could be construed as asserting title by adverse user to the easement only, and not title to the land in fee. Whichever construction be correct, however, we do not consider that the making of such a claim in the heat of litigation operates to forfeit the easement which defendant had acquired by purchase from his predecessor in title. The mere claim of a…