Pittsburg, Port Wayne & Chicago Railway Co. v. Dunn

The opinion of the court was delivered, January 7th 1868, by Read, J. In The Queen v. Inhabitants of Dukinfield, 32 L. J. N. S., Mag. Cases, p. 230, Mr. Justice Blackburn said : “ The common law enabled any owner to dedicate land as a highway, and then at common law followed the consequence that it became repairable by the inhabitants of the parish or district.” In Re Milford, 4 Barr 305, the court said: “ The authority of the owner of a town plot to dedicate his ground to public use is as effective as that of the legislature and in The. Borough of Birmingham v. Anderson, 12 Wright 258, it is said: “It has been the practice in this country in laying out towns to have the plat surveyed and a plan made in accordance with the survey designating the streets, public squares and open spaces left for commons, wharves or any other public purpose. Those streets, squares and open spaces are thus dedicated to the public by the proprietors of the soil, whether they be the state or private individuals. When a town is situated on a navigable river, it is generally the custom to leave an open space between the line of the lots next the river and the river itself. This was done by William Penn in 1682 in the original plan of the city of Philadelphia on the Delaware front, and he called it a top-common, and in 1784, his descendants, the former proprietaries, in their plan of Pitts-burg, adopted a similar measure of leaving such an open space, and they called it Water Street. In 1789 the proprietors of the land on which the city of Cincinnati is built pursued the same policy, and in their plan the ground lying between Front Street and the Ohio river was set apart as a common for the use and benefit of the town for ever.” In Commonwealth v. Cole, 2 Casey 189, Knox, J., speaking of a road in Carbon county, said: “ To prevent any future controversy, it is prope'r for us to add that the use of the ground by the public as a highway for more than twenty-one years made it a public road just as effectually as though it had been originally laid out and opened by the proper authorities.” In Schenley v. Commonwealth, 12 Casey 29, a peculiarly strong case, my brother Strong said (p. 59) : “ Wherever there is an actual giving of land for a public highway accepted by the public,'though there be no deed, the dedication is complete.” The acceptance there was the user by the public. Eight years is quite a sufficient time for presuming a dedication of the way to the public. In a great case, which was much contested, six years was held sufficient: 11 East 375; and in Jarvis v. Dean, 3 Bing. 447, Chief Justice Best said: “ As it [285] had been used for four or five years as a public road, the jury Were warranted in presuming that it was used with the full assent of the owners of the soil.” “ If the act of dedication be unequivocal, it may take place immediately:” Woodyer v. Hadden, 5 Taunt. 126, per Chambre, J. ; and “ It may be established by acts unequivocal in their character on the part of the owner and the public, although occurring on a single day:” Hunter v. Trustees of Sandy Hill, 6 Hill 414. The defendants in this case say the principal question is whether the road leading from the Beaver Road to the State Road and to the Remington Station, was a public or a private one, the company asserting it was a private road, and that the crossing over their railroad was a private one which should be kept in repair by the owner thereof. The plaintiff alleged and proved that the road was laid out by him, the owner of the land, and opened to public use as long ago as 1856 or 1856, as testified to by the witnesses, and fenced on one side all the way and on the other till it reached the bank, where no fence was necessary, and the court, on this state of facts, charged the jury, if they believed these to be the facts, “ and if this strip of ground so thrown out was dedicated to the public use without any intention of resuming the exclusive right to or use of the said ground, and if, from that time to this, the public has used the same as a public road leading to the defendants’ station, then it has become public so far as that question, can have any legitimate bearing on this issue. You will determine whether the facts are so or not.” We can perceive no error in this guarded instruction, for it is clear that so far as regarded the plaintiff and the public using it, it was not a private road but a public one, and was so treated by the defendants and the community. The court'further say: “ In addition to the evidence introduced to show the laying out and fencing this road, the plaintiff called witnesses to prove that at or soon after the opening of this road by the plaintiff, the railroad company made a crossing of plank, but that it is improperly constructed because the edges of the plank were higher by an inch or more than the top of the rail, thus forming a groove or net between them, dangerous to the passage -of wagons because the wheels, owing to the angle at which the road crossed the railroad, were liable to be caught and injured therein. That the officer in charge of that portion of the road was notified by different persons several times of the dangerous condition of the crossing and promised to repair it, but had not done so.” These facts the verdict of the jury fully established:— [286] 1. That it was a public road and so treated by the defendants and the public. 2. That the crossing was constructed by the defendants and neglected to be repaired by them after full notice of its defects. 3. That it was dangerous and known to be so by the defendants. The plaintiff’s hired man was driving his team along this road with a loaded wagon, and when he came to the crossing could neither see nor hear any train approaching ; he then attempted to drive across the railroad, but in doing so one of his wheels became fast in this groove, and while the driver was attempting to extricate it a gravel train belonging to the defendants came up the road, collided -with the plaintiffs’ team, and produced the injury complained of. This statement and the very clear and lucid charge of the judge make it unnecessary to say more than that the errors assigned are not sustained, and that the defective state of the defendants’ crossing being the cause of the injury suffered by the plaintiff, the Judgment is affirmed.