Morse v. Ranno

Aldis, J. This case was submitted upon the briefs of the counsel, and we notice therefore only the points made by the excepting party. I. It is claimed that the charge of the court was erroneous upon the subject of dedication, in this, that, as it was a conceded fact that the ground in controversy had been used as a common for forty or fifty years, no other act of dedication was necessary. We think what is here claimed as a conceded fact does not appear to have been either conceded or proved, or that there was .even any evidence tending to show that it had been used as a common by the public. It was conceded that the land had never been enclosed by a fence, but that clearly was no evidence that it had been used by the public as a common. Since 1839, the owner of lands adjoining the highway has not been required by law to fence improved lands upon the line of the highway. The omission to so fence them is no proof whatever of an intent to dedicate them to the public, and the instruction of the court upon this point was entirely right. Nothing formerly was more common than for [606] farmers, and even for those residing in villages, to leave vacant and unfenced yards in front of their houses. It would he against the common sense and universal experience of the community to infer an intention to dedicate such grounds to the public. All that is said in the exceptions as to its being used as a common is, “while John Smith owned the premises he kept a store in the house and used said ground as a common.” We think this language cannot fairly be held to mean anything more than that he used the land for people to drive over and occupy for the purpose of coming to his store to trade. The expression is that he used the ground as a common, not that the public used it. How he used it, or what acts he or others actually did on the land in so using it, are not specified. In the absence of more specific proof we must consider that he used it as a common only for his private benefit, viz: that he left it open and not fenced from the road so that his customers might have more ready and convenient access to the store. This, too, would not he the least proof of a dedication. And this was all the evidence we can find that tended in that direction. There was, therefore, no evidence of any positive intent or act of the plaintiff or his grantors to dedicate the land to the public, and the right of the public must rest, therefore, upon mere use or possession, unaccompanied by other acts or circumstances. It is claimed that a dedication may be shown by a possession ' by the public for less than fifteen years. This is unquestionably true when the enjoyment by the public is accompanied by other acts and circumstances showing an intent on the part of a donor or grantor to make a dedication. Thus, where the owner of land opens a street through his premises, sells building lots and induces others to buy and baild on the street, a much shorter possession than fifteen years would suffice to establish the dedication. In such case it would be fraudulent in the owner, after having induced others to act upon the faith of the street’s being appropriated to public use, then to attempt to defeat the public use. So where papers, writings, or deeds defectively executed evince the intent to make a dedication of land to the public, a corresponding possession of less than fifteen years may sometimes suffice. Cases of this kind go much upon the ground of proof of [607] an actual intent to make the dedication, and that upon the faith of the supposed dedication the public or individuals have relied, and made investments, or erected buildings whose values would be impaired by the withdrawal of the land from public use. But in this case no act or intent of the plaintiff or his grantors is shown; there is nothing but use by the public as a highway for travel and mere silent acquiescence, or, rather, mere omission to resist such use by the plaintiff. The right of the public, therefore, stands upon the basis of mere enjoyment, unaccompanied by other acts or circumstances ; in short, upon adverse possession, and must be continuous and for that period of time (fifteen years) which ripens possession into title. The charge of the court placed the case on this ground, and we think was entirely correct. Where a highway is thus acquired by occupation, the extent of the acquisition, the width of the road, must be determined by the extent of the actual occupation and use. There can be no constructive possession beyond the limits which are defined by the user upon the land, or by other marks or boundaries marking the extent of the claim. In this case there does not appear to have been any evidence of claim, or any showing of marks or bounds to extend the right of the town beyond the line of actual travel. Judgment affirmed.