Read v. Leeds

Church, Ch. J. This case has been submitted to us, upon the briefs of counsel. We have examined the authorities referred to, and are persuaded, that the charge of the judge at the circuit, is free from legal objection. We consider the case now, as conceding, that the locus in quo was a part of a public highway, and upon that side of [187] the centre which adjoined the plaintiff’s land. The plaintiff was the adjoining proprietor. Notwithstanding this, and while the defendant concedes, that in such case, the plaintiff will be considered, prima facie, as owning and possessing the land to the centre of the road, aside from the facts upon which he relies; yet he claims, that, in this case, the exclusive and adverse possession of the land, subject to the public easement, was in himself; and that the plaintiff was thereby ousted therefrom, when he received his deed from Provost, in April 1843, under which alone he claims title ; and also, that he had acquired a title, by the continuance of such adverse possession, for more than fifteen years, by himself and others from whom he derives title. The whole case depends upon the legal effect of such adverse and exclusive possession as is claimed by the defendant. The question is not, whether the defendant has acquit ed any rights against the public ; nor whether he can be now treated as one who has erected and continued a public nuisance upon a highway ; but what are his rights, as against the private claims of this plaintiff, to the ownership of the soil of the highway ? We had supposed, that the real nature of a highway and of the rights of its adjoining proprietors, had long ago been settled in this state ; and we do not think we can define them more clearly than has been done by our predecessors. This subject was first partially discussed and considered, in the case of Stiles v. Curtiss, 4 Day, 328.; and again, more elaborately, in the case of Peck v. Smith, 1 Conn. R. 103. By the latter case, we consider it to have been decided, that this subject was governed by the principles of the common law, unchanged by any statute provisions of our own ; and that, by that law, the soil of a highway is prima facie in the adjoining proprietors to the centre of the road, subject to the rights of public travel and its incidents ; and that such proprietors can maintain action of trespass founded upon their possession against a stranger, for any acts of trespass committed upon it, not justified or excused under the public right. And this has been recognised as the law of this state, in the cases of Watrous v. Southworth, 5 Conn. R. 305. Chatham v. Brainerd, 11 Conn. R. 60. Champlin v. Pendleton, [188] 13 Conn. R. 23. And by the common law also, an action of will lie, by such adjoining proprietor, for the re-corery of the possession and seisin of which he has been deprived, by the ouster and disseisin of another, Goodtitle d. Chester, v. Alker, 1 Burr. 133. 2 Selw. N. P. 728. 1 Saund, Pl. & Ev. 447. 1 Sw. Dig. 508. Peck v. Smith, 1 Conn. R. 103. Opinion of Swift, J. p. 132. & seq. The law above cited proves, that the proprietor adjoining a highway may have an exclusive possession and seisin of the soil of the highway, subject to the public easement. This being so, it follows, as a legal consequence, that he may be dispossessed and disseised thereof, subject to such easement, as in other cases. Some distinguished judges have supposed, that the right of the public travel upon a highway, is inconsistent with the right of private possession ; and that these cannot exist together. We do not see this. When a highway is established, the owner of the land over which it is laid out, is in possession, and the laying-out of the road does not dispossess him it only confers upon the public an easement or right to use the land, for a specified purpose only, while, for all other purposes, the right of possession and the actual possession may remáin as before. And it can make no difference, in this respect, whether this easement be imposed by law, for a public purpose, or whether it be created by the owner of the land, for private use ; as where a private right of way is granted, or a right to dig for ores, &c. All these are burthens upon the land, and interfere with the owner’s full use of it; but they do not operate as an ouster of the proprietor, nor to transfer his right of possession, nor his interest in the soil, to the public, or to another. The public has a benefit in the land, but not a possession. Therefore, as we suppose, private rights to land, subject to an easement, may be acquired, transferred or lost, as if no such incum-brance existed. We perceive no good reason why it should be otherwise ; nor why a highway over one’s land should prevent another from acquiring both an actual and adverse possession of it, as against the owner of the soil; and thus, by a disseisin, to obtain a title, as in other cases. A possession of, and a title to, such land, may be acquired, *by deed from the owner: [189] why not, therefore, in any other way, by which title may be legally transferred? The owner has the same remedies, action of trespass or ejectment, to prevent encroachments, and defend his rights against the adverse occupancy of another, as in all other cases ; and if he neglects to do this, but submits to it, why should not such adverse possession under claim of title, ripen into right, by continuance, on the one side, and acquiescence, on the other? The public right of passage is not inconsistent with such a result. It is said also, that the acts of possession under which the defendant claims, were public nuisances, and however long continued, could never lead towards the acquisition of a title to the plaintiff’s land. The same acts, if done by the plaintiff, would have been nuisances, to the same extent. And the question between these parties, is not, what was the effect of the acts upon the public rights, but how did they operate as against the proprietor of the soil, who never complained of them as nuisances, or in any other way ? As encroachments upon the public highway, the plaintiff’s right of soil merely, gave him no right to complain of the defendant’s acts ; and as encroachments upon his own possession, he acquiesced in them, and, as wTe think, cannot now evade their legal effect upon him, by calling them public nuisances. Indeed, it seems to us, that the plaintiff, by prosecuting this action, recognises the doctrine which we declare. To sustain it, he must show himself to be in the actual possession of the land covered by the way, irrespective of the public easement; and that such possession has been disturbed by the defendant; and if disturbed or injured, to any extent, then it may have been even to the extent of an actual disseisin. If this be granted, and if such a disseisin of the plaintiff actually existed, and continued, when the plaintiff received his deed from Provost, as the defendant claimed, on the trial, then the plaintiff acquired no title by that deed ; and if, as the defendant further claimed, such disseisin had continued for fifteen years, it has operated to confer a title by possession upon the defendant, as the jury were, in this case, instructed. The only case to which the plaintiff’s brief refers us, as opposed to the foregoing views, is Parker & al. v. The inhabitants of Framingham, 8 Metc. 260. We think the plaintiff mistakes the extent of that authority. The point relied [190] upon, in that case, by the present plaintiff, only proves, what - we are not disposed to deny, that the acts there supposed to constitute an adverse possession of the soil of the highway, were not of such a character as would amount to it. The claimant, as is usual in country towns and villages, occupied a portion of the highway, as a place for depositing his fire wood, farming utensils, &c., which the court considered as done by virtue of a general license and permission for that purpose, to be presumed from the common practice in such cases ; and they denied that they amounted to an adverse possession. But here, the acts of possession and claim of title were unequivocal: there was no room left for doubt or construction as to the nature of the defendant’s acts of ownership ; — he had enclosed the locus in quo, with a fence, and set trees upon it; and the jury have found the fact to be, that he had used it exclusively and adversely. Such acts operated as an ouster and disseisin of the plaintiff. This being so, the plaintiff, upon the principles laid down by the judge, and which we approve, could not recover. And therefore, we do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.