Knight v. Heaton

The opinion of the court was delivered by Redfield, J. Upon two grounds it seems to us, the plaintiff is entitled to be quieted in his possession of more than twenty years, against a re-survey of the adjoining highway, even against the rights of the public, notwithstanding nullum tempus occurrit regi. 1. Such along possession is the most conclusive evidence of what was, at the date of the survey, considered its true location, as a long possession under a deed is the most satisfactory evidence of the true location of the thing granted. 2. If it could now be shown, beyond all controversy, that the survey extended as far upon the plaintiff, as is now claimed, the non user on the part of the public and the constant use by the plaintiff, under a claim of right, is sufficient to establish a prescriptive right, in that class of cases, like the present, [483] where no statute of limitations applies. Moore v. Rawson, 3 B. & C., 332. Dowl. & R. 234. Gale & Whately on Easements 256. 2 Greenl. Cruise 214. But it is said, I know, in the English books upon this subject, that one cannot prescribe against the crown. But the same result is attained, in that class of cases, by presuming a grant. 3 Stark. Ev. 915. In Johnson v. Ireland, 11 East 279, Lord Ellenborough, in giving judgment, says, a new trial should be awarded, because the judge at the trial told the jury, they could not presume a grant against the crown. That was a somewhat longer period, than is shown in the present case. But changes are now so much more frequent than formerly, in regard to the occupancy or the title to lands, that ninety years then did not afford more satisfactory evidence of title, than thirty years uninterrupted possession does now. In many of the newer stales five years is the ordinary term of limitations of real actions. And one ought not to be surprised, perhaps, that even that term should some day be very essentially abridged. And Lord Ellenborough then said, “ I would presume any thing, “ capable of being presumed, in order to support an enjoyment for “ so long a period ; as Lord Kenyon once said, on a similar ocea- “ sion, that he would not only presume one but one hundred grants, “ if necessary to support so long an enjoyment.” Crimes v. Smith and Beedle 4“ Beard’s Case, 12 Co. 4, are cases of grants presumed against the crown, as the acknowledged head of the establishment of the Church in England. Many American cases might be cited, where the same principiéis recognized. Mather v. Trinity Church, 3 Serg. & R. 599. It is every day’s practice, to presume a dedication of land to the public use from an acquiescence of the owner in such use. And in practice it was never doubted, but that the right of the public to a highway might be lost by fifteen years disuse, and, under circumstances, by a much less period. And we see no reason, why the limits of a highway should not be fixed by the same lapse of time. The sense of the legislature upon this subject is sufficiently indicated by a recent statute, by which it is expressly provided, that, in such cases as the present, the proprietor or occupier of land for twenty years, which was originally a portion of the highway, when [484] the same is again reclaimed by the public, shall be entitled to compensation, the same as in other cases. The statutes of limitation now in express terms providing that the state shall not be exempt from its operation, we see no good reason, why one may not set up prescriptive and presumptive rights against the public, the same as against individuals. And there is, perhaps, no good reason, why such prescriptions should not apply as well against the public, as in their favor. Judgment affirmed.