dissenting:
I have to dissent in this case. I am very decidedly of opinion that there ought to be a retrial of the case, if for no other reason, because of the undue latitude given the jury in determining the rights of the parties. And while I dissent from the result reached by a majority of the court, upon the general review of the case, I specially dissentdrom the opinion of the majority, wherein they approbate and support the eighth and twelfth prayers offered by the plaintiffs, and which were granted by the court below.
*549By the eighth prayer, the jury were instructed that if, at the time of the doing of the acts complained of, there was a right of common and public highway in the defendant to a road of only about twenty-five feet or less in width over the land of the plaintiffs’ testator, and that an excavation in excess of the defendant’s right of highway, etc., was made by the defendant, etc.; and, that, “if the defendant did the acts com'plained of without the execution of its lawful powers according to law, then, that the defendant would be liable as a trespasser for so doing, and that the jury must find for the plaintiffs, and assess such damages as the evidence shows would make them whole.”
What the jury may have understood from this instruction is not free of doubt, either as to the matter of right in the locus in quo, or as to the measure of damages. What constitutes a right of common and public highway, is a mixed question of law and fact. The jury should have been required to find the facts, and the court, in its instructions, have defined, hypothetically, what facts, if found, would constitute a right of common and public highway. But the jury were left to determine whether there was any such right of common and public highway in the defendant, and upon their conclusion in the negative, the defendant was left in the position of and liable as an unqualified trespasser. Then, too, the jury were required to pass upon the question, whether the defendant had acquired the right to the way in question in the exercise of its lawful powers according to law. This was certainly a question of law, dependent upon the facts that might be found by the jury. But the proposition, as stated in the prayer, was doubly misleading, as the right of a public way may be acquired by public use, without the agency or authority of municipal power.
But I think the greatest error in this respect is tp be feund in the twelfth prayer. After enumerating certain facts and circumstances given in proof by the plaintiffs, but wholly ignoring any reference whatever to the specific facts and *550circumstances given in evidence by the defendant, the prayer proceeds to instruct, that “if the jury believe any of . these facts, then they are instructed that these facts, or any of them which the jury may believe, would tend to prove that said lane or road was not a common or public highway, and would tend to rebut any presumption of its being a common or public highway, and any and all such facts, if believed by the jury, are to be considered in connection with the other evidence in the case, and if the jury, upon the whole evidence, believe that said lane or road was not such a highway, at the time of the acts complained of, which have been given in evidence, and was not a highway by dedication, then they should find in favor of the plaintiffs.” By this prayer the jury in effect were instructed, that any one of the enumerated facts, without regard to its probative force, if believed by them, would tend to prove that the road was not a public way, and would tend to rebut any presumption that it was a public highway. Indeed, this prayer virtually submitted the whole case to the jury, including both law and fact. For, as I have said, what constitutes a public highway, in its various modes of establishment, as distinguished from a private way, is matter of law, dependent upon facts that may be found by the jury (Co. Litt. 56 A); and so the question of dedication' is one of mixed law and fact; and whether any given state of facts will constitute dedication or not is a question of law to be decided by the court. By the twelfth prayer, however, the jury were required to find not only the facts, but to determine what constituted a public highway, acquired by prescription or otherwise, as distinguished from a private way, and they were also required to determine not only the facts, but what would or would not amount to dedication of the way to public use.
It is not my purpose to go into an examination of the case at large, but only to point out some of the objectionable features in the prayers to which I have referred, as mislead*551ing to the jury. I think those prayers ought to have been rejected. It is impossible to say to what extent the objectionable propositions they contain may have affected the conclusions of the jury; and it will not do to say, what can not be known as a matter of certainty, that the vice of these prayers, in the contemplation of the jury, was corrected by other instructions. It is my opinion, upon the whole case, that the judgment below ought to be reversed, and a new trial ordered. And I am more decidedly of this opinion, because of the uncertainty upon what theory or ground the verdict was founded; whether upon the theory, supposed to be established by the evidence, that there was in reality no public right of way,, or that such right of way, if it existed, had been used in excess of such public right, and so as to render the defendant liable as for a trespass. I think the finding of the jury should have been so directed by the instruction of the court, as to preserve the right of the public in the way, if such right really exists. The finding under the instructions given, and the judgment thereon, leave the matter in entire doubt as to how the right really stands,— whether the public has further right to use the way or not. And so the authorities of this District will be in doubt, whether they will not incur the perils of trespassers, in attempting to enter upon the way to make needful repairs, or to exercise other authority over it. This result, I think, should have been avoided, by special direction as to the form of the verdict, in view of the manner in which the case was presented to the jury on the prayers for instruction..