Wiggins v. Tallmadge

Hand, J.

The revised statutes declare that “ all public highways now in use, heretofore laid out and allowed by any law of this state, of which a record shall have been made in the office of the clerk of the county or town, and all roads not recorded, which have been, or shall have been used as public highways for twenty years or more, shall be deemed public highways, but may be altered in conformity to the provisions of this title.” (1 R. S. 521, § 100.) The next section requires the commissioners of highways to order the overseers of highways to open all roads to the width of at least two rods, “ which they shall judge to have been used as highways for twenty years.” (§ 101.) Another section requires the commissioners “ to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as shall have been used for twenty years, but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” (1. R. S. 501, § 1, sub. 3.) And by section 102 a penalty of five dollars is imposed upon “ whoever shall obstruct any highway,” &c. It perhaps is not important to define what was deemed a highway at common law, as the statute declares that all roads used as public highways for twenty years, may be deemed highways. It seems to me this clause of the statute has great influence upon this case, though I do not think it necessary to put the case upon twenty years’ user. “ Highway” is the genus of all public ways, whether ca.rt, horse or foot ways. (Queen v. Saintliff, 6 Mod. 255. Holt, C. J. 4 Vin. 502.) And whether a road shall be deemed a highway from mere user, depends upon the nature of the user. It is doubted in some of the books whether a road can be a highway unless it be a thoroughfare. (Hoodyer v. Hadden, 5 Taunt. 126. Hood v. Veal, 5 B. & Ald. 454. King v. Marquis of Downshire, 4 Ad & El. 698.) The judges have been divided in opinion, but there is now, perhaps, a leaning to the opinion that it may be. (British Museum v. Finnis, 5 C. & P. 460. Roscoe on Cri Evi. 564. Woolr. on Ways, 3.) “ A thoroughfare,” Mr. Webster says, “is a passage through; a passage from one street or opening to another ;” and a highway has been said to be infinite, having no termini ; no terminus a quo, nor terminus ad quern. (King v. Hammond, 10 Mod. 383.) But a cul de sac may be a good highway, in this state, if laid out by the proper authorities. In our new country are many public roads not connected with any other, at one end. And the same judge who gave the opinion in King v. Hammond, decided that if a vill be erected and a way laid out to it, if there be no other way but that to the vill, it is not material quo animo it was laid; it shall be deemed a public way. (Parker C. J. in Queen v. Inh. of Hornsby 10 Mod. 150.) If a highway is laid out in the mode pointed out by statute, that may be done at once. But if user is relied upon to prove dedication, the authorities differ as to the requisite time ; but there is no doubt user is sufficient. In some cases six, and in another seven years, were required. In Colden v. Thurbur, twelve years’ use was held prima facie evidence that the road had been properly laid out. (2 John. 424.) Lord Kenyon, in Rugby Charity v. Merriweather, mentioned a case of six years. (11 East, 375, n.) That case has been doubted; and perhaps more now depends upon the intent than upon the time of sufferance. ( Woolr. on Ways, 12.) A dedication must be with intent to dedicate. (Ld. Denman in Barraclough v. Johnson, 8 Ad. & El. 99.) There must be animus dedicandi, and when that is ascertained, whether by the express declarations and the acts of a party, or by user, it is sufficient. The books are full of such cases. (Ladi v. Shepherd, 2 Stra. 1004. Post v. Pearsal, 22 Wend. 425. S. C. 20 Id. 116. 3 Kent, 451. Jarvis v. Dean, 3 Bing. 447. Surrey Canal v. Hall, 1 M. & Gr. 392. Parker v. Van Houten, 7 Wend. 145. Galatian v. Gardner, 7 John. 106. City of Cincinnati v. Lessee of White, 6 Peters, 435. N. Orleans v. U. S. 10 Peters, 662. State v. Wilkinson, 2 Vt. R. 480. 4 Paige, 510. Hunter v. Trustees of Sandy Hill, 6 Hill, 407. 2 Smith’s Lead. Cas. 180, and Am. Notes.)

Again; the commissioners are to ascertain and enlarge those roads which have been used twenty years. (1 R. S. 501, § 1: 521, § 101.) Perhaps the roads can not be enlarged, without compensation. But the commissioners can ascertain what are roads in the town, and when that is done, the road so ascertained becomes a public highway so far as such public act can confirm it; in cases where confirmation is necessary. (Parker v. Van Houten, 7 Wend. 145.) Though I do not see how such confirmation can be necessary in this case. As a general rule the parish is to repair all highways, no matter how they became such. (King v. lnh. of Leake, 5 B. & Ald. 469. Woolr. on Ways, 76. King v. Inh. of Wornsey, Holt, 338. 4 Vin. 504, 5.) And a bridge used by the public, prima facie, is to be repaired by them, it seems, though built by an individual; and to escape that obligation, it lies with the public to show that the duty rests with another. (23 Wend. 450.)

These principles, applied to the road in question, require a new trial. Here was a former road opened perhaps sixty years ago; and forty years before suit the grantor of the defendant, and his neighbor, nearly upon the same site, opened a lane or road upon their boundary lines, taking ten feet from each for the distance of half a mile, from whence it continued on another course into a small neighborhood; and which ever since has been used uninterruptedly by the public, until shut up by the defendant the year before the trial. It is true the factory has been abandoned for years, and but few families have resided beyond the part in question. And it has been decided there can not be a dedication to a limited part of the public. (Pool v. Huskisson, 11 M. & W. 827.) And it is testified that the twenty feet was opened to accommodate the adjoining lands. But the uninterrupted use by the public alone, I think sufficient evidence of dedication.

But again ; in 1826, as I understand the testimony, the road commissioners surveyed, laid out and recorded, and made to connect with the road or lane in question, the road beyond, on which inhabitants then resided, who had no other egress. And the public were undisturbed in the use for twenty-two years after. Denominating the road in question the “ lane” of A. in that survey could make no difference. If it was a public road before, an admission to the contrary, by a public officer, in a document upon another subject, would not affect the rights of the public. But I think it is rather a declaration that the other part was also a public way, for it would be futile to lay out a road sixty or seventy rods in length, having no connection with any other road. And this takes away the objection that the particular piece in question was a cul de sac, if that would make any difference. Possibly from the last course of the survey made in 1826, some other outlet was intended; but if so, it seems no such route has been completed. Nor, under the circumstances, could that alter the case. But there is another circumstance that should not be overlooked. In 1848, the proper officers ascertained, described and entered this road upon record. If any adoption was necessary this was sufficient, and made the public liable to repair. Upon the whole, here was sufficient evidence of a dedication, upon which the public and individuals had relied; in addition to which, the proper authorities had taken legal steps to declare it a public highway. The defendant purchased the adjoining farm many years after the dedication and subsequently acquiesced in the use by the public 22 years longer, and then obstructed the road and shut in his neighbors.

I think the case is clearly against him; at all events the question of dedication should have been passed upon by the jury.

Judgment reversed, with costs to abide the event.

Willard, P. J. concurred.