Watrous v. Southworth

Hosmer, Ch. J. The first question in the case, is, whether the evidence was legally rejected. The defendant offered in proof the report of a committee, certified from the records of the town of Saybrook, and made as far back as the year 1713 ; which report had never been accepted, by the town. The testimony offered, with legal propriety, was repelled. The town, at the date of the report, and long after, had no authority to lay out highways ; and had they possessed it, they never accepted the report. It follows, that the supposed highway was not the act of the town, but an incipient step towards the procurement of it ; and if it had been their act, that it would have been unauthorized, and of no legal effect. It has been said, that an acceptance, after so great lapse of time, ought to be presumed ; but for such presumption I discern no imaginable ground. How can the court infer, that a town did an act, which it had no right to do ? It could not be presumed, even if the town had been invested with legal authority, to do the supposed act, unless there was some ground independent of the records, from which to deduce such presumption. The case discloses nothing of this description. The public have never used the highway, commensurate with the above report, but the travel has only been on some parts of it. This fact, so far from leading to an inference sustaining the report, repels such presumption ; as the use of some parts of a tract of ground claimed to be a highway, is proof only that those parts of it are, or were ever intended to be, a highway. Except as to the road of sixteen rods in width, which, perhaps, was a part of that which the committee reported, no user is pretended. The act of 1723, (p. 439. edit. 1808.) which, it has been contended, confirmed the committee’s report, has no bearing on the subject. That law was made for the confirmation of grants made by towns, in certain cases, through mistake, and in the belief of authority, with which they were not invested. There must first be a grant, before the confirming act can have any application ; but, in this case, there was no grant ; no act of the town. Besides, the law confirms estates only, and not rights of passage to the public. On a minute examination of all its parts, this is too clear for reasonable controversy. It is claimed by the defendant, that twenty-eight years’ enclosure of a part of the highway, is, to the land thus enclosed, presumptive evidence of a grant from the state ; and as the highway contracted, that his title, so far as respects the residue, [310] extended to the centre. I cannot admit, that a grant is presumable on the ground assumed ; but a consideration of the question I waive, as being unnecessary. At the time when the enclosure was first erected, the plaintiff had an estate in fee-simple to the then centre, which was eight rods from the front of his farm, and three rods westward of the locust trees. The defendant thought fit to appropriate to himself, by a fence, all the highway, so far as he had title, and likewise a rod of the freehold, which was the property of the plaintiff. The principle the defendant must support, is this, that the centre of the highway, under all circumstances, is the line of demarcation between him and the tenant on the opposite side. This principle is too unjust to be admitted, unless established law most clearly supports it. It is a general rule of the common law, that the fee of the land over which a highway passes, is owned equally by the owners of the adjoining ground, Stiles & al. v. Curtis, 4 Day 328. Peck v. Smith, 1 Conn. Rep. 103. This rule, however, is not artificial, and of positive institution, but is founded on the presumption, in absence of proof, that the highway was originally granted, by the adjoining proprietors, over their land, in equal proportion. This is not a presumptio juris et de jure, but a reasonable presumption, based on probability. Where if appears, however, that the highway was laid wholly over the land of one person, the presumption is annulled ; and to hold, by inference, against fact, that the fee of one person should be extended beyond his land, and of the other restrained to narrowerlimits, because he had been paid for a right of passage over a part of his soil, would be a most inequitable fiction, in opposition to the established maxim, that in fictione juris semper existit œquitas. I can conceive of no principle of policy or general convenience, that countenances so wanton a sacrifice of private justice. In the before cited cases of Peck v. Smith, p. 127. it was said by Edmond, J., that to any one general rule that can be adopted in relation to highways, there must be exceptions ; and with the same learned judge I fully concur in the following observations : “ A. owns a piece of land ; a highway is laid across the middle of it ; the fee remains in A. Again, A. and B. own land adjoining ; a highway is laid wholly on A.’s land, but bounding on the land of B Here, it is clear, the fee of the way remains in A., as much at in the first case ; for laying a servitude on the land of A., cannot transfer any part of the fee to B., al [311] though, by laying out the road, B. has become an adjoining proprietor. Take one case more : A. owns land ; B. owns land adjoining on each side of it; the whole of the land of A. is laid out for a road. Will it be said, in such case, that the fee is transferred from A. to B. ? I think it cannot be said with reason. because proof of such a set of facts in respect to the laying-out of the road, and the circumstances of ownership continuing the same, as at the time of the laying-out, rebuts and oversets entirely the presumption, that the road was originally laid on B.’s land, or the land of those under whom he claims.” To the same effect was the opinion of the late Ch. J. Swift, delivered in the before-mentioned case. Upon the application of the preceding principle, it is undeniable, that the defendant did not extend his estate under the highway, by enclosing the moiety of it contiguous to his own land, and disseising the plaintiff of a part of his freehold. The disseisin, in this, as in other cases, must be construed strictly, and the right of the disseisor be limited, by his actual occupation. The Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. Rep. 416. In result, I am satisfied, that the cutting of the trees in question, was an unwarrantable trespass, which in no manner has been justified ; and that there ought not to be a new trial. Peters, Brainard and Bristol, Js. were of the same opinion. New trial not to be granted.