Reinhardt v. Chalfant

The Chancellor. The information involved the protection of a public right and, therefore, was properly brought by the At [218] tomey General. A relator with a private interest in the public right was a proper party in order that there be some one responsible for costs of the cause. When this original relator conveyed away her land her grantee by succeeding to her private and special interest in enforcing the public right was properly substituted as relator. Liberality in the substitution of parties in the interest of justice has always been exercised in Chancery. Satterihwait v. Marshall, 4 Del. Ch. 337, 357. Especially is this true where the proceeding is an information to enforce a public right such as the one in question in the present case. It is clear that the original relator, as well as her granteei the substituted relator, had a right to the use of the whole of Ashley Place as a way providing access to the lot of land fronting on Ashley Place, and that the defendant had no right to obstruct it. This same right exists in owners of all other lots abutting on Ashley Place, and probably in owners of other lots in the tracit laid out as a town by the Ashley Syndicate. This right results from the recording of the plot. Ogle v. Philadelphia, etc., Co., 3 Houst. 267, 272; Poole v. Greer, 6 Pennewill, 220, 65 Atl. 767; Fulton v. Town of Dover, 6 Del. Ch. 1, 6 Atl. 633; Downey v. Hood, 203 Mass. 4, 89 N. E. 24. Furthermore in this particular case the grantor of the defendant by the conveyance from the Ashley Syndicate acquired title expressly subject to the right of the user of Ashley Place by all persons to whom such right was given as the result of the recording of the plot; and the defendant took title to his land subject to this easement and the burden thereof. But the question here does not involve distinctly private rights to the easement, but to the invasion of the public rights based on the obstruction of what is asserted to be a public highway or street, for the information is brought by the Attorney General on the relation of an owner of land abutting on the street, and is, therefore, the assertion of a public right. The issue, then, is whether Ashley Place was and is a public highway. There has been na evidence of any act of the public authorities creating or recognizing Ashley Place as a highway. The Levy Court, the body having jurisdiction of the highways of the county, has not acted and the territory included in the plot [219] of Ashley Syndicate has not been formed into a municipality so far as appears. By the recording of the plot and the wording of the conveyances by Ashley Syndicate of land in the plot, and particularly by conveyances of land abutting on Ashley Place, that street throughout its length and breadth from and into Maryland Avenue was dedicated to public uses as a street or highway. Fulton v. Town of Dover, 8 Houst. 105, 6 Atl. 633, 12 Atl. 394, 31 Atl. 974 (Court of Errors and Appeals); State v. Southard, 6 Pennewill, 247, 66 Atl. 372. But there must be an acceptance, express or implied, of such dedication, in order to establish the street as a highway. Fulton v. Dover, supra. In the absence, as here, of an express acceptance by any public authority or governmental body, or any act done by it or them impliedly accepting such dedication, as, for instance, assuming control over, or improving it, the only evidence of acceptance which can be asserted is that resulting from public user. Though elsewhere it is not so established, it is established in Delaware, and probably by the weight of authority elsewhere, that acceptance of a dedication of land for a highway may be implied from long user of the way by the public as of right. In the earlier cases in Delaware a complete dedication was considered a necessary result of plotting streets and selling lots in the plotted tract. State v. Reybold, 5 Har. 484, 486; Ogle v. Philadelphia, etc., Co., 3 Houst. 267, 272; Fulton v. Dover, 6 Del. Ch. 1, 6 Atl. 633; though in the last cited case the Chancellor did not apply the principle. In Fulton v. Dover, 8 Houst. 78, 6 Atl. 633, 12 Atl. 394, 31 Atl. 974, on appeal, the Court of Errors and Appeals held that public user was also necessary to effect a complete dedication, and found no evidence of such user in fact, and on the contrary such conditions as excluded user, the premises being used for agricultural purposes. The reason for this requisite of acceptance,- is that the duties and responsibilities of the public authorities respecting highways should not be imposed upon them unless the public needs require, and user is one of the tests of such needs. There is no settled standard of the length or character of the user to raise an implication of acceptance, and.ordinarily it is a question of fact rather than of law, and so one to be determined by a jury under the [220] varying circumstances of each case. Riley v. Hammel, 38 Conn. 574; and cases cited in note in 18 L. R. A. 511. The character and length of user varies according to the circumstances under which the effect of such user is considered. As against the dedicator, or any one taking title under him, a shorter period of user would show an implied acceptance than if the object of the suit was to enforce a liability on the public for the failure to repair the road, or perform some other public duty respecting it as a public way. So here, where the object of the suit is the removal of an obstruction in a plotted street, erected by the grantee of the dedicator, the length of user would not be important, and it need not be a long term. Riley v. Buchanan, 116 Ky. 625, 76 S. W. 527, 63 L. R. A. 642, 3 Ann. Cas. 788; Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N. W. 270, 18 Am. St. Rep. 441. In the case of Phillips v. City of Stamford, 81 Conn. 408, 71 Atl. 361, 22 L. R. A. (N. S.) 1114, the Court on ample'authority took the ground that where the public by the acts of those most likely to be cognizant of a proffered gift of á way for public use has shown its recognition of its usefulness and its approval' of the gift by any variety of recognized acts and conduct, the conditions of acceptance are fully satisfied. This same cited casé shows that the absence of grading, improving or repairing the way by the public authorities is not determinative against its acceptance by user as a public way. See also Reading v. Telfer, 57 Kan. 798, 48 Pac. 134, 57 Am. St. Rep. 355. Nor is the small number of users necessarily a determining feature, and it is sufficient to show that the persons who could naturally be expected to enjoy it have done so at their pleasure. Phillips v. City of Stamford, cited above. Applying these principles to the case before the Court, it is clear that there has been in this case, and for the purposes of this case, sufficient evidence of public user as to constitute the whole of Ashley Place as a public way, and to establish the right of the -relator and all others in like relation to the premises to the free Use of the whole of such street as laid down on the recorded plot. Notwithstanding the evidence as to the trees, shrubbery and flowers in the bed of the street adjoining the land of the defendant, it did appear affirmatively by the testimony of several witnesses that there was this user by vehicles, and it was certainly open [221] freely to such use by pedestrians. Such user perfected the implied dedication by plotting and selling lots in the plotted tract, and, therefore,' the defendant had no right to obstruct by artificial barriers the use of the whole of Ashley Place. Certain statutes were cited by the defendant to show that Ashley Place did not comply therewith, and so was not a legal public or private road. But section 1566 of the Revised Code of 1915 does not apply to roads created by private dedication. State v. Southard, 6 Pennewill, 247, 249, 66 Atl. 372. Section 1502 of the Revised Code .of 1915 prescribed the width of a road improved under the act creating the office of State Highway Commis-. sioners, and does not apply to a dedicated street not improved at public expense under the act. None of the other provisions of law referred to by the solicitors for the defendant have any bearing on the question raised and decided here, for the question here is not whether Ashley- Place complies with all the statutory' requirements as to laying out, improving and constructing a road, public or private, have been complied with; but is whether there has been such an acceptance of it as a way. A decree will be made giving appropriate relief and requiring the defendant to pay all the costs of the cause. NOTE. On appeal the decree was affirmed. Post p. 389.