I concur in the judgment of affirmance, but on the ground that, for want of evidence to sustain the pleaded cause of action, there was no issue of fact for submission to the jury, and defendant's motions for a nonsuit and a directed verdict were well founded in law.
The contention of the appellant municipality is that there is "uncontradicted proof" of the existence of Beverwyck Road, "under its ancient name, in 1760," and thus there is a conclusive presumption that the highway was "an ancient public road required by acts of Assembly, prior to 1760, to be four rods, or sixty-six feet, in width." More specifically, it is said that "the existence of the presently-named Beverwyck Road in 1760 as the highway from Hanover to Paquanack" having been established "by recitals in ancient deeds and road returns, and otherwise, it can fairly be presumed, in the absence of further evidence, that the highway came into legal existence by laying-out under act of Assembly, sometime between 1716 and 1760;" and that since the Act of 1716 directed that all roads laid out by the surveyors be four rods wide, "there is no presumption that, in laying out the road in question, the surveyors ignored or failed to observe the legislative mandate as to the width of the road." The facts thus offered to sustain the stated presumption are not in evidence.
As remarked in the opinion of my brethren of the majority, the unrecorded deed of May 8, 1760, bounds the lands on a "highway" or "road;" and the deed of August 26, 1761, describes one of the boundaries as the "east side of the highway leading from Hanover to Paquanack." But this does not mean that the present Beverwyck Road was in existence prior to the passage of the Act of 1760 by the Colonial Legislature, *Page 106 much less that it was laid out by surveyors "under act of Assembly, sometime between 1716 and 1760." A finding to that effect would be without substantial support in the proofs; the claimed inference would be the emanation of surmise and conjecture alone. It is conceded in the majority opinion that the terms "highway" and "road" in the conveyance of May 8, 1761, "may or may not have referred to a public road." What would be the basis for the jury's finding that the reference was to a public road, let alone the present Beverwyck Road? The Act of 1716 also provided for the laying-out by surveyors of plantation roads one and two rods wide. The title of the abutting landowner and the right of public user are placed upon a precarious footing when the issue of the location and width of a highway is submitted to the determination of a jury in circumstances such as these. The burden of proof lay upon the municipality; and there was no issue for the jury unless there was substantial evidence to sustain the tendered hypothesis.
The rationale of the decision in Ward v. Folly, 5 N.J.L. 566 [[*]482] (Sup. Ct.), determined in 1819, is that the road there in question was then "an ancient road, and used as such as far back as the memory of man can reach," and so "must be considered as a public four-rod road, laid out by virtue of some one of these former acts, before the recording in the county-book was directed, and confirmed by those that succeeded it." Therein lies the factual weakness of the case made by the appellant here. There is an utter want of proof that Beverwyck Road was an "ancient" road, as thus defined, prior to 1760; and a finding that it was such a road would be palpably theoretical without a vestige of evidence to sustain it. There is no proof as to when, or by whom, or under what authority the present road was established; and nothing to support the hypothesis that it was an established public highway at the time of the making of the unrecorded deed of 1760.
A highway may be established by prescription, user or recognition, or by dedication by the landowner with the consent of the appropriate governmental authority, or by statute or direct public action to that end. Generally, the width of *Page 107 a road established by dedication is determined by the intention; while the width of a highway established by user is governed by the extent of the user. And continuity of user throughout the prescriptive period is a condition prerequisite to the ripening of the right. These are fundamental principles. Prudden v.Lindsley, 29 N.J. Eq. 615 (E. A. 1878); Riverside v.Pennsylvania R.R. Co., 74 N.J.L. 476 (E. A. 1907).
The legal effect of submitting a cause to a jury for its verdict is a determination by the court that the evidence is legally sufficient to warrant a finding by the jury in favor of either of the parties to the cause. To entitle the plaintiff to recover, he must adduce evidence which, if accepted as true, is legally sufficient to sustain a verdict, and warrant a judgment in his behalf. The question of the legal sufficiency of the evidence, if accredited by the jury, is the exclusive province of the court. This has been the recognized rule from time immemorial in the common-law courts of this country and in England. The power of the trial judge to nonsuit or direct a verdict does not depend upon the absence of all testimony contra; the inquiry is whether there is any evidence which, if credited, would justify the affirmation, by "men of ordinary reason and fairness," of the proposition sought to be maintained. The question is whether there is a reasonable basis in the proofs for a verdict in favor of the party against whom the direction is asked? The scintilla rule does not obtain in this State. Schmid v. Haines,115 N.J.L. 271 (E. A. 1935); Pellington v. Erie R. Co.,115 N.J.L. 589 (E. A. 1935); Trinkle v. Pennsylvania R.R.Co., 116 N.J.L. 433 (E. A. 1936); Weigel v. Weigel,117 N.J.L. 177 (E. A. 1936); Sivak v. New Brunswick,122 N.J.L. 197 (E. A. 1939); Thoe v. Chicago, Milwaukee St.Paul R. Co., 181 Wis. 456, 195 N.W. 407 (1923); Wigmore onEvidence (3rd ed.), § 2495 et seq.
The plaintiff municipality undertook to sustain the burden of proof by evidence which was not the subject of dispute and not susceptible of divergent inferences touching the matters in issue; and its sufficiency was a matter for the court. Accepting *Page 108 the uncontradicted evidence as verity, and giving plaintiff the benefit of all reasonable inferences from the facts thus established, the cause of action is not proved. There is no sufficient basis therein for the presumption that the road in question was laid out prior to the act of the Colonial Assembly in 1760, for that measure confirmed all roads and highways of six and four rods "theretofore * * * laid out by any acts of Assembly whatsoever," or that it was an "ancient" public road within the concept of Ward v. Folly, supra, and so such a road by reasonable presumption. There is no substantial support in the evidence for a finding in favor of the plaintiff municipality. Arbitrary inferences from proved facts and circumstances are inadmissible; inferences have no probative force unless they are reasonable and substantial. Another jury could in like circumstances draw a contrary inference in resolving the issue of title to other lands abutting on the same highway, even though the undisputed title record is the sole evidential source.
Were I of the view that the proofs raised an issue of fact, I should vote to reverse the judgment, for on this hypothesis there was clear error in the admission of the maps referred to in the majority opinion, all made between 1930 and 1937, showing the width of the road in question to be fifty feet. These maps had no relevancy whatever on the issue of the existence of an ancient road four rods wide in 1760, laid out by the act of the Colonial Assembly, and the subject matter could not but be highly prejudicial to the municipality. The theory upon which the evidence was admitted would override the long-established principle that title by adverse user may not be acquired against the State. Proof of encroachments upon the highway has no place in this inquiry. The evidence was undoubtedly received and considered as bearing upon the width of the road at its inception; and so the error was harmful.