Strong v. Wales

The opinion of the court was delivered by Barrett J. The record of the indictment and verdict in the case of State v. Thomas, in 1832, and of State v. Strong, in 1875, establishes that the occupancy of the land covered by the buildings, for 89 feet north and south, and as far west as the buildings extend, is rightful. It settles the question of their title, and that it had been acquired in some authentic way. The ground of that [381] title, as claimed, is the lease to King, which lease embraces the land on which the buildings stand, and eleven feet in continuance west of the piazza of the building. The question now is, whether Strong has got title to that eleven feet, as against the right of the city or of the public, asserted by the city authorities, to exclude him from such use of it as he has hitherto had. The evidence shows that it had been occupied as an approach to the buildings of Strong 'throughout the whole period, down to the time of the action of the city authorities that gave occasion for this bill, and occupied in such a way as to evince a claim of right to such occupancy. There had been no use by the public interrupting such occupancy, or indicating a denial of the right of such occupancy in Strong and Thomas. That occupancy was such as the character and situation of the property rendered proper, and necessary, and such only as could have been made of it in order to serve the beneficial and necessary purpose of its use by the owner. It was as exclusive as it' could be ; and the use by the public was not only consistent with the claim and occupancy by Strong and Thomas, but was mainly a use in furtherance of the purpose of the occupancy by them under the right as claimed. That use by the public, as shown, was in going to and from the buildings on the connected territory, for the purpose and by way of participating in the business carried on in those buildings and in patronage of that business. That use by the public, therefore, was rather in co-operation with the proprietors of the buildings and business, and tended to the establishment of an easement in such proprietors, rather than an adversary right against them. These views are so fully established and illustrated by the cases as to render citation or discussion needless. On the other hand, we think there has been no use next west of that eleven fee,t which changes the character of the land from that for which it was dedicated by the original proprietors. The claim by the orator is, that it has become a highway in the technical sense, and so must continue to be such, with all the rights of the public to use it as such, until discontinued in the mode prescribed by the statute. The use of it has been as consistent with its character as a [382] common as with the character of a highway. There is no ground for claiming that it assumed at all the character of a highway till after a portion of the square had been fenced in. After that fencing, the part outside the fence continued to be used just as it had been used before. As it had been and continued to be open, and free for passing over with all sorts of teams as well as on foot, at all times of day and night, between the public established highways around it, it was needful for the town to see to it that it was reasonably safe against accidents so far as its surface and condition were concerned, mu,ch the same as was held in the case of Ozier v. Hinesburgh, 44 Vt. 220. Aside from that claim as to the orator’s rights as in a highway, the only other ground of claim by him as against the doings of the city authorities is the use by him as against the public. That use by him has not been adverse to the use of the territory by the public as a common in distinction from a highway. The title and right of the public, by the dedication of the proprietors, were of a public common. That title and right still remain, unless lost by adverse use. This point stands upon the same ground and view as the former one, on which we accord to the orator his right to the eleven feet, namely, that such use as he had had of it was effectual against the right of the city authorities to prevent such use. Eor similar and equal reason, we hold that the public have the right to appropriate what is west of him to the purposes of a public common, as against his right to prevent its being done. The decree is affirmed, as by the mandate sent to the Court of Chancery.