Muzzey v. Davis

Danpobtk, J. The case finds that the curbstones in controversy were originally the property of the plaintiff. It is a fundamental principle of law, that he can be divested of that property only by his own consent, or by due process of law. In this case it is not pretended that it has been taken from him by any process of law. The only question, then, involved in the case, is one of fact. Has he ever consented to part with his property ? His ownership having been admitted, the burden of showing a change rests upon the defendant. How and when was this accomplished? It is suggested that, by voluntarily putting his materials into a sidewalk, they became annexed to and a part of the realty. This may bo so; but it does not necessarily follow that his property is gone. The defendant does not claim title in himself, as the owner of the land; nor does the case show that any person other than the plaintiff is the owner. On the other hand, it does show that the plaintiff was ” owner of a lot of land oil High and Danforth streets, and constructed the sidewalk in front of his premises.” In such case, in the absence of all proof to the contrary, the legal presumption is, that he owns to the middle of the street, and that he built the sidewalk upon his own land. By such an act, he surely does not part with any title to his property. It is further suggested that the plaintiff dedicated his property to the public. But where is the proof of this? It is true the case finds that with the stones ho built a sidewalk, which, it is to be expected, the public would use; but he built it in front of his own premises, and might well have done so for his own convenience, or to gratify his own taste. There is nothing in the case to show that ho might not have taken it up at any time he chose; and it is not to [364] be presumed that he dedicated it to the public, unless the circumstances lead to that conclusion. The fact that it was in the street, would undoubtedly authorize the public to pass over it, but would not necessarily authorize the inference of a grant of the property itself. But, if we should infer a dedication, it can only be a dedication of the use for the purpose of passing over it, and, before that dedication could become complete, there must be proof of an acceptance. There is, however, no such proof in this case. It does not appear that any repairs had ever been made by the city, or that the city had exercised over, it any acts of ownership whatever, up to the time of the alleged trespass. But, if it were otherwise, and perhaps, in any event, so long as the walk was in the street, the city would undoubtedly be bound to keep it safe and Convenient for travellers. This, of course, would give them the right to repair, with all its incidents. It may be conceded, even, that the city had the right, not only of repairing, but to make changes in the location of the materials, taking them from one place and using them for repairs in another. But it is to be borne in mind that the act complained of .was not one of repair, nor were the materials taken used for the purposes of repair; they were simply taken away and sold; an act which the city- could not authorize, even in the case of a legally located street. The utmost limit to which they could go would be to take material and perform such acts as may be necessary for repairs. Adams v. Emerson, 6 Pick., 56. If any objection had been made to the repairing of the walk by the city, or, if the alleged trespass had grown out of any acts incident to, or done for the purpose of repairing, another and a very different question would have arisen, as to which we now do not indicate any opinion. When such a question arises, the argument of defendant’s counsel, drawn from inconvenience, will be entitled to great weight, but it has no applicability to the case before us, as we view it. Another suggestion entitled to consideration, and which [365] appears to be decisive of the case, is that, if there was a dedication to the public, the act of the defendant was not only inconsistent with the right of use, which the public had, but was entirely subversive of it. If done by authority, it would operate as a legal discontinuance of it. If done without authority, it was no less an actual discontinuance, and, when the rights of the public cease, the property would revert to the original owner. Defendant defaulted, to be heard in damages. AppletoN, C. J., KeNT and WaltoN, JJ., concurred. Tapley, J., concurred in the result.