Cady v. Fitzsimmons

Park, C. J. It appears by the finding in this case that the locus in quo had been in the exclusive and adverse possession of the plaintiff and her grantors since the year 1812, a period of nearly sixty-eight years, when this suit was brought. It would seem, therefore, hardly possible that there could be a defence to the action. But it further appears that the locus is within the limits of an ancient highway, which was regularly laid out by the proprietors of the town of Waterbury in the year 1737, and that it has never been legally discontinued, although in the year 1812 the selectmen of the town undertook by deed to exchange, with one of the grantors of the plaintiff, the land covered by the highway, for other lands needed for another highway. The exchange was- in fact made, and ever since the public have acquiesced in it. Prom that time the locus in quo has been inclosed, by the plaintiff and her grantors, with a sufficient fence, and they have been in exclusive, adverse and peaceable possession up to the time the defendant committed the acts complained of. The defendant claims that, inasmuch as the highway has never been legally discontinued, it still remains a highway, and that the fence inclosing it was a public nuisance, which he had a legal right to remove. It is unimportant in this case whether or not the highway was legally discontinued, for the defendant did not remove the fence because it was an ineroachment upon the highway, with an intention to use the highway as such, but he removed it to assert his private right to the land covered by the highway. Besides this he has given no notice under the general issue that he should claim that the fence was a public nuisance, and therefore he cannot make the claim [214] now. His notice only called in question the title of the, plaintiff to the premises in question, and set forth title in himself. Now, whether the highway was legally discontinued or not, the exclusive, adverse possession of the plaintiff and her grantors of the locus in quo for so long a period, extinguished whatever title the defendant may have had and established the title in herself. She has the absolute right to the land as against every body but the public, even if the. public right has not been extinguished. The facts would seem to be sufficient to warrant the inference of an abandonment of the highway as such by the public; but it is not necessary for us to consider this question. The public have nothing more than an easement in the soil of a highway, while the fee of the land is in the adjoining proprietor. Such fee, even while the highway exists, is as much the subject of prescription or of the operation of the statute of limitations as it would be if there were no highway. The only difference consists in the difficulty of establishing and maintaining adverse user against the adjoining proprietors, while the public are using the highway. But here no such difficulty existed. The public in fact had ceased to use the highway and suffered the plaintiff and her grantors to fence it up for a long period of time, much longer than was necessary for the statute to run against the defendant’s claim. We think the title to the locus in quo was in the plaintiff. The defendant further claims that the court erred in admitting the deed of the selectmen in evidence as tending to characterize the possession of the plaintiff and her grantors of the premises in question. We think the evidence was proper for the purpose. The deed, in connection with the acquiescence of the public, tended to show that the grantors of the plaintiff believed they had a good title to the premises, and claimed the same accordingly. The defendant claims however that the court has made use of the deed for a further purpose, for which it was not offered nor admitted, namely, as evidence of an abandonment of the [215] highway, as such, by the public. But the court did not treat the mere deed as proof of this, but the fact of the deed being given, in connection with the disuse of the highway from that time by the public, as evidence of abandonment. This question however becomes unimportant, as we regard the question of abandonment as not affecting the result. There is no error in the judgment complained of. In this opinion the other judges concurred; except Carpenter, J., who, having decided the case in the court below, did not sit.