Beardslee v. French

Hosmer, Ch. J

1. From the survey received in evidence, it appeared, that the supposed highway was a line, extending in length, but without breadth, or any limits bounding its surface. A highway, which is a public right of passage over another man’s ground, like a grant from an individual, must be defined with reasonable certainty The public must have the means of knowing how far they may travel, without becoming trespassers, and the individual, to what extent his land may be occupied by others. But in the survey above mentioned, there are no limits to the rights of passage, nor to the incumbrance on the land of another, nor any possibility of ascertaining the extent of either. A mathematical point is as fit a representation of a tract of land conveyed, as a mathematical line is, of a highway.

' The survey, for these reasons, was incompetent evidence.

2. Evidence to prove a highway often consists in showing that the public have used and enjoyed the road ; and the uninterrUpted use of it, for a considerable space of time, affords a strong presumption of a grant On the other hand, the nonuser an easement of this kind, for many years, is prima facie evidence of a release of the right to the person over whose land the highway once ran ; and although the precise limit of time in respect of the public, in such cases, has not been established, there can be no doubt that the desertion of a public road for nearly a century, is strong presumptive evidence that the right of way has been extinguished. After a long possession in severalty, even a partition may be presumed. Hepburn & al. v. Auld, 5 Cranch 262.

The evidence should have been received, by the court; and the rejection of it was, unquestionably, an error.

3. The omission of the court to instruct the jury, that the wanton and unnecessary destruction of the posts and bars, by the defendant, in removing them, was a trespass, was an unquestionable error. If the plaintiff had erected posts and rails across a highway, or on the defendant’s land, the defendant might legally remove them, doing no unnecessary damage ; but the law admits of no wanton spoil or waste, even in such cases. It is sufficient, that a person may put out of the way all impediments to the enjoyment of his rights, without inflicting unnecessary injury on the ri hts of others. Welch v. Nash, 8 East 394. Vid. 2 Phill. Ev. 138.

A new trial, in this case, must be granted.

Lanman and Daggett, Js., were of the same opinion.

Peters and Brainard, Js., were absent when the case was argued ; and, of course, gave no opinion.

New trial to be granted.