Mayor of Madison v. Booth

Tbippe, Judge. 1. As stated by the reporter, the facts are pretty fully given in the head-notes. The title of Booth to the strip of land was fully proved and was not contested. By not extending his inclosure to the limit of his lot, an outside narrow front was left adjoining the higlnyay, and the public were accustomed to pass over this as a sidewalk. He had also used it for his own purposes, protected it from being washed by the rains, made it the way for access both to his dwelling and his workshop, and kept wagons and other vehicles on it which were brought to his shop for repairs. Even if this use by the public would bar the owner from denying it to them hereafter, it did not authorize the authorities of the town to dig a ditch through its length so as to cut off the owner from the approaches to his own premises, where his family lived, and likewise to obstruct the ingress and egress of his customers to his shops where he earned his living. It is, to say the least, doubtful whether the owner had lost the right, if he chose to do so, to inclose this strip and assert his exclusive use of it. The case of Irwin vs. Dixon et al., 9 Howard, 10, presented but few additional facts beyond what this case shows in behalf of the owner’s right to fence in a portion of a lot belonging to him, which had been used for a long time as a highway in the city of Alexandria. His right so to do was sustained by the supreme court of the United States: See, also, 3 Bingh., 447; 11 East, 370; 30 Georgia, 896; 44 Ibid., 529; 22 Pick., 75. Without determining that question, as it is unnecessary to the judgment we render, it is sufficient to say we are satisfied he was entitled to damages for the-injury he has sustained. 2. From the evidence, it appears that the jury assumed, as-the measure of damages, the injury which the plaintiff would suffer by permanently keeping the ditch open. As the city of Madison has asserted its dominion over this strip of land, and plaintiff’s counsel states that he is ready to remit all claim for any'- future damages, the judgment is affirmed on condition that he makes such an entry on the minutes of the court, [611] with such further permission to the city as will authorize them to make future necessary repairs on the ditch, etc., all of ■ which will be specified in the judgment. Judgment affirmed.'