Ely v. Parsons

Loomis, J. The acts constituting the trespass complained of were committed by one Button, by order of the defendant as a selectman of the town of Enfield, and consisted of the cutting of certain trees and brush which' obstructed and hindered the passage of travelers along an alleged highway of the town. There was no dispute as' to the acts done, the official character of the defendant, nor the ownership of the land. The chief contention centered around the question whether or not the locus in quo was a highway. This we will first consider, and then notice briefly some subordinate questions that were made in the case. It was conceded that if a highway existed, it had become established by dedication alone. The conclusion of the — 95 — trial court was as follows:—“ The road in question is one of public convenience and necessity, and is a public highway created by dedication of the lands through which the road passes, and especially by the owners of the plaintiff’s land, and by-the acceptance thereof by the public as a highway.” This is so full and complete as to preclude further contention on this point unless some error in law intervened to vitiate the result and produce a mistrial. JSTo such error appears, unless the claim of the plaintiff on the trial is correct as matter of law, “ that in this state a high-way could not exist by prescription, and that in case of uninclosed and uncultivated laud like the plaintiff’s, dedication by the owners for a highway could not be found from mere use of the road by the public.” The first part of the proposition as to the effect of prescription, or long-continued public use, is directly in the face of the uniform tenor of the authorities in this state and elsewhere. In the language of Hinman, J., in delivering the opinion of the court in Sherwood v. Weston, 18 Conn., 51, “it has long been settled that the existence of a highway may be proved by immemorial usage, or by dedication of the road to the public use, as well as by the record of the original lay-out.” Beardslee v. French, 7 Conn., 128; Brownell v. Palmer, 22 id., 118; Curtis v. Hoyt, 19 id., 169; Noyes v. Ward, id., 269; State v. Taff, 37 id., 397; Guthrie v. New Haven, 31 id., 321; Commonwealth v. Low, 3 Pick., 412; Reed v. Northfield, 13 id., 97; Stedman v. Southbridge, 17 id., 163; State v. Green, 41 Iowa, 693; Chicago v. Wright, 69 Ill., 318; State v. Cole, 26 Penn. St., 187. The other part of the plaintiff’s claim is, that “ in ease of uninclosed and uncultivated land a dedication cannot be found from mere use of the road by the public.” In answer to this claim we say:— First, that the court based its conclusion not only upon a continuous use by the public as far back as living witnesses could remember, coupled “ with the knowledge and assent of the adjoining land owners and especially with the knowledge and acquiescence of the owners of the plaintiff’s land,” — 96 — but also upon the facts that the town authorities had distinctly recognized the road as a public highway, and had as early as 1867, and again in 1880, removed the obstacles to public travel in precisely the same manner as in the case at bar. It is not true therefore that the dedication rested on mere user. This answer would be sufficient without controverting the legal proposition upon which the plaintiff relies. But, secondly, we doubt whether the proposition is sound that as matter of law it is impossible to find a highway by dedication from long-continued public use and acquiescence in such use where the land over which the way is claimed is uninclosed and uncultivated. We concede that the plaintiff cites some high authorities in support of his claim. Angell on Highways, § 151; Hutto v. Tindall, 6 Rich. (S. C.), 396; Peyton v. Shaw, 15 Bradwell, 192; Kyle v. Logan, 87 Ill., 64. Hutto v. Tindall seems to be the leading case on this subject. The text from the paragraph cited from Angelí on Highways, in behalf of the plaintiff, was taken from the opinion of the court in that case, but the principle of that case it seems to us is better stated in the head note as follows: —“ Where the mere use of a road by the public through uninclosed woodland is relied upon to establish a right of way in the public, it must be shown that the use was continued for twenty years and was adverse.” FnoST, J., in delivering the opinion, explained what was meant by adverse use, namely, “ such acts as showed that the way was claimed as a right, and not used by the permission of the owner of the land over which it passed.” No fault can be found with such a statement of the law, but in applying the principle to the facts of that case, a mere evidential fact, namely, that the land was uninclosed woodland, was given a conclusive effect to show that the use was not adverse and that * there was no intention to dedicate the way to the public. In a few states where there are large tracts of uninclosed and uncultivated lands, the law has been applied in the same manner for the protection of land owners, and it has also been applied to the uncultivated lands held by the United — 97 — States Government where a way has been used as a highway over them for more than twenty years. In Phipps v. The State, 7 Blackf., 512, the court said:—“We do not think this doctrine of dedication from user is at all applicable to the extensive, uncultivated domain of the United States. This domain is not in the actual, visible possession of anybody. There is no one to watch and guard against encroachment. It is impossible that the general government should know whether its unseated lands are improperly used for highways or not. There cannot therefore exist that consent by the owner to the use of his land for a road, from which dedication can be presumed.” The principle invoked in behalf of the plaintiff is here recognized as exceptional, that where the owner is so situated with reference to his land that he cannot know how it is being used, his assent is not to be presumed from such use. It is obvious that the doctrine under discussion is not as a rule of law as well adapted to a state like our own, where the land, as a rule, is cut up into small farms, and where tracts of uncultivated and uninclosed lands are comparatively few in number and small in extent. As a matter of evidence however it is unquestionably true, and applicable here as elsewhere, that the fact that the land over which a way by dedication is claimed is uninclosed woodland, ought greatly to weaken, and often to overcome, the presumption of an intention to dedicate, to be derived from the use. It may be that the'trial court did not give this fact the weight it ought to have had, but, if so, this court is powerless to revise any error in the weighing of evidence. In this respect the position of this court is unlike that of the highest courts of some other jurisdictions, where the finding of the court below does not preclude additional and sometimes contrary inferences of fact in the court above. We find little or no disparity in the authorities upon the proposition that it is a questioned fact for the jury to decide on the evidence in each particular case, whether the facts show an intention to dedicate the locus in quo to public use. A — 98 — question of intention must necessarily be a pure question of fact. But it may be suggested that, as the fact that land is uninclosed and uncultivated is conceded to be very strong evidence to rebut the presumption of an intention to dedicate it, there can be no harm done by malting- it conclusive. We think it more logical and in better accord with the analogies of the law, and on the whole more just, if the fact is used merely as evidence. Its weight depends on the character and amount and duration of the use and the purpose which the way used subserves in promoting public convenience ; all which being known to the land owner may signify to him a use so unmistakably adverse that his assent must be presumed in the absence of any dissent. But were the principle made an absolute rule of law no such discriminations could be made; it would apply equally to a small and casual, and to a large and constant use; to a neighborhood crossing and to a great public thoroughfare; to a small uncultivated tract and to a large one. And how would the doctrine be applied if we suppose the way used to pass first over cultivated land and then over a small tract of uninclosed and uncultivated land of a different owner, the whole however serving some great purpose of public convenience and necessity ? Would the first part of the way become by dedication a mere cul de sac, or would the use of the whole go for nought because a part rvas over uncultivated and uninclosed land ? Such are only a few of the difficulties attending the application of the principle as a rule of law. The character, extent and manifest purpose of the use might as well be made conclusive as the character of the land used. Both must be considered in connection with all the circumstances, to arrive at a just conclusion upon the question whether there has been a concession of the way by the owner of the soil. In this case the fact of dedication, having been found upon proper and appropriate evidence, has been conclusively established. If then the locus was a highway and the trees obstructed — 99 — the travel over it, it was both the right and the duty of the defendant to remove the obstructions. But it is said that, as a prerequisite to the exercise of such right and duty, notice to the plaintiff was necessary before the cutting. We cannot accept such a proposition. Public rights were interfered with; public travel was actually obstructed; the town was exposed to liability for damages done to the traveler. Why then require the selectman to go three miles to notify-the land owner before he could take away the hindrance to travel. Delay, presumably, would have injured the public without conferring any benefit on the owner of the land. It is found that the wood was all left on the premises, which the owner had the benefit of, without the expense of cutting it himself. It is well settled that a nuisance which actually obstructs public travel may be abated by any one who is injuriously affected. The defendant surely cannot be in any worse position because it was his official duty to remove the obstructions to prevent any such injury. The plaintiff, in his reasons of appeal, also complains because the court omitted to find any definite limits of the highway and to determine whether the cutting of the trees was within these limits or not. No question as to the limits of the highway was made in the court below, and the case did not depend upon it. The question was whether the trees actually obstructed public travel. It was so found; and this of necessity involved the finding that they projected within the limits of the traveled path, and no one would claim that a highway established by user could be of less extent. But another claim of law remains to be considered— whether the defendant rvas liable for the unnecessary cutting by Button. The defendant directed Button “ to cut the brush and trees and make the road passable at as little expense as possible.” The court finds that “ all the cutting which Button did was necessary to make the road passable for travel, excepting the cutting of five white birches arid a few limbs on — 100 — the off-sides of two pine trees. The birches stood from fourteen to seventeen feet from any part of the road over which travel passed, and leaned away from the road. The two pine trees stood from nine to ten feet away from any part of the traveled road, and neither the birches nor the limbs of the pine trees in any way impeded travel or were likely to do so.” The court further finds that “ the plaintiff’s damage by the whole cutting, if the same was unlawful, was $10. His damage by the unnecessary cutting was merely nominal.” The defendant invokes for his protection the rule that a public officer or agent is responsible only for his own misfeasance or negligence, and not for the negligence of his subaltern, provided the latter is competent for the work. Story on Agency, § 821; Wharton on Agency, § 550. Although the general language in which the rule is stated in the books may at first seem decisive of this question, yet we think it is not applicable to this case. In stating the proposition that the principal is not liable, a qualification stated in Story on Agency, (supra,) should always be understood—that is, that he is not liable unless he directed or authorized the wrong. Then there is another very important distinction, to the effect that if the inferior or sub-agent holds not an office known to the law, but his appointment is private and discretionary with the officer, the principal is responsible for his acts. This distinction is more fully stated in a note to the case of Wilson v. Peverly, in 1 American Leading Cases, 5th edition, side p. 651, top p. 785. In Shepherd v. Lincoln, 17 Wend., 250, it was held, Cowen, J., delivering the opinion, that a superintendent of repairs on the canals of the state is personally liable in an action on the case for damages sustained by an individual through the negligence of workmen employed in making repairs. In the case at bar, upon the finding, we do not think Button should be regarded as an inferior public officer or agent, but rather as acting solely under the defendant, so that the question we are considering turns on the authority — 101 — given by the defendant to Button. There was of course no express authority as the court finds to do unnecessary cutting, but there was express authority “ to cut the brush and trees and make the road passable.” No trees were pointed out, no limits given, no restriction of any kind was mentioned, no indication was given as to the defendant’s own judgment, but the work was all committed to the judgment and discretion of Button as to what should be cut. There is no claim or suggestion that Button acted maliciously or wantonly, but he acted on his own judgment, just as in effect he was told to do, and so we say he acted within the scope and course of his employment, so that his act was the defendant’s act. The case is therefore clearly within the principle of law as given in Wood’s Law of Master and Servant, § 288:—“ When a person puts another in his place to do certain acts in his absence, he necessarily leaves him to determine for himself according to his judgment and discretion, according to circumstances and exigencies that may arise, when and how the act is to be done, and trusts him for its proper execution; consequently he is answerable for the wrongful execution of the act either in the manner or occasion of doing it, provided it is done bond fide in the prosecution of his business, and within the scope of the servant’s express or implied authority, and not from mere caprice or wantonness and wholly outside the duties imposed upon him by the master.” See the cases cited in note 3 of this section; also the case of Smith v. Webster, 23 Mich., 298. We conclude that there was error in holding the defendant not liable for the unnecessary cutting, which would give the plaintiff a new trial if the court had not found that the damage from the unnecessary cutting was merely nominal. The mere fact however that only nominal damages can be given would not be conclusive on this question. Regard must be had to the real purpose and object of the suit. If it was instituted to .try some question of permanent right, and the party is found entitled to that right, but it happens that only nominal damages can be given, — 102 — there can he no objection on that account to giving a new trial; but if the party has failed in the substantial object of the suit, and has left only a bare technical right to recover nominal damages, a new trial will not be awarded him for that purpose. The complaint in this suit was manifestly brought to determine whether the plaintiff had a right to the land which was in use for a highway; if error had intervened tending to defeat him in the establishment of this right the finding that his damages were merely nominal would have constituted no objection to a new trial; but the plaintiff entirely failed in the real object of the suit, but, by reason of the accidental cutting of some brush and trees not necessary to make the highway passable, he has a bare technical right to nominal damages. But substantial justice has been done. Had he asked compensation for the unnecessary cutting merely, the defendant presumably would have paid him even more than nominal damages, for he had no object except to vindicate the right of the public to use the way. That a new trial must be denied under these circumstances is abundantly sustained by the uniform tenor of the decision, in this state and elsewhere. Shipman v. Horton, 17 Conn., 487; Gold v. Ives, 29 id., 123; Cook v. Barr, 39 id., 306; Briggs v. Morse, 42 id., 260; Hyatt v. Wood, 3 Johns., 239; Hudspeth v. Allen, 26 Ind., 166; Plumleigh v. Dawson, 1 Gilman (Ill.), 544. There was no error in the judgment complained of. In this opinion the other judges concurred.