Lane v. Kennedy

Peck, J. The part of the charge which is excepted to, assumes that the street encroached upon, was regularly laid .out, marked and established many years since four rods wide, which was much wider than the public travel then required, but that so much of said street, throughout its entire ’ength, as was then required, had been used by the public •from that time up to the period when the plaintiff’s fence was removed by the supervisor, and that the plaintiff having become the owner of lands adjoining said street, extended 'his fence so as to inclose, with his other lands, ground within the lines of said street, which was not then used nor required for the purposes of public travel. The question therefore arises, under the charge of the court below, whether such partial encroachment upon the lines of a street or highway, if continued uninterruptedly, for the period of twenty one years, will prevent its subsequent use by the public, if the necessities of public travel should thereafter require it, without a new condemnation. It is, undoubtedly, true, that the town' of Oxford, which had the custody and control of the street at the time it was ©ncroaohed upon, like all other municipal corporations, is subject to the operation of the statute of limitations, “ in the same manner and to the same extent as natural persons,” (8 Ohio Rep. 298, approved in 5 Ohio St. Rep. 594); but the -mere undisturbed possession of lands for any length of time, which is all that the charge assumes, does not, of itself, create such bar as against a natural person. To have such -effect, the possession must not only have been open and notorious, but it must also have been adverse during the whole period of twenty one years. The fact of possession per se, is only an introductory fact to a link in the chain of title by possession, and will not simply of itself, however long continued, bar the right of -entry of him who was seized, and, of course, creates no positive :.title in any case. The reason, in other words, is, that it may [47] have been a permissive possession, which, in the language of tbe master of the rolls, in 2 Jac. & Walk. R. 1, however long it may, in point of fact, have endured, could never ripen into a title against anybody.” Ang. on Limit., sec. 384. To make such possession adverse, there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a surrender of his claim. The. question is one of much practical importance in this state. The capacities of its streets and public highways, whether prescribed by statute or established by the proprietors of towns or embryo cities, were fixed with regard to the future rather than the present exigencies of the communities in which they were located. At first, a mere trace would have sufficed for all the travel where, in process of time, an svenue is scarcely adequate to accommodate all who, for bisiness or pleasure, may desire to traverse it. The public have a mere easement — a mere right of transit over it. And if the facilities are ample for the time/no one feels specially interested in seeing that the lines of the road have not been partially encroached upon by an adjoining proprietor, who, after all, owns the land subject to the easement. Public opinion would scarcely sustain a supervisor who should require the removal of a fence, which encroaches slightly upon the highway, if ample space is still left for all travelers. Unlike the case in 5 Ohio St. Rep. 594, there was nothing in the character of the improvement, which indicated an intention to permanently appropriate the land. It was a mere fence ; and, as the bill of exceptions informs us, a worm fence and crooked at that. • He carefully avoided inclosing any part of the road actually used by the public. He infringed no right which was then enjoyed or apparently desired. Nothing was done to excite the apprehension of the public or to call for its protest. We hear of no declarations, and all his acts were consistent with a temporary occupancy, by the permission or the mere sufferance of the public, till the [48] land should be required for its use. In Kirk v. Smith, 9 Wheat. 288, Ch. J. Marshall says, “ it would shock that sense of right, which must be felt equally by legislators and by judges, if a possession, which was permissive and entirely consistent with the title of another, should silently bar that title.” The circumstances do not show that the plaintiff, in placing his fence up to the traveled part of the street, thereby designed or intended to withhold the part inclosed from the public use, should it ever be required, and we are not at liberty to presume it. Fraud and intentional wrong are never presume'd, but must be proved. Where the circumstances surrounding the possession, are entirely reconcilable with a continued recognition of the ultimate right of the public, the possession can not well be said to be adverse in any just sense of that term. In Fox v. Hart (11 Ohio Rep. 414), it was held that a partial encroachment upon a traveled highway by an adjacent owner, though continued for eighteen years, did not work a forfeiture, as for nonuser, of the part so encroached upon, and that there toas “ nothing to authorize the presumption, that any portion of it had been abandoned, or would not be opened, as soon as the public convenience should require It must be borne in mind that, in the case at bar, the road was not closed up and the public thereby excluded from any use of the street. In such case, the entire exclusion of the public would doubtless be such an ouster or disseizin, as would require a suit to be brought within the statutory period, upon the principles settled in Lessee of the City of Cincinnati v. The First Presbyterian Church, 8 Ohio Rep. 298. Nor is it like the case of The City of Cincinnati v. Evans, (5 Ohio St. Rep. 594), where the purpose of the possession and intended permanency, were indicated by the erection within the bounds of the street, of the front of a large and costly ware-house. The erection of such a building, in such a place, was ample notice to the city authorities that he thereby intended a permanent appropriation to his private and individual benefit of a portion of the public easement, and [49] called for immediate and effective measures upon their part, to prevent it. The case was, in this view of it, rightly determined; hut as will be seen by a reference to the facts therein stated, it might with equal, if not greater propriety, have been placed upon the ground of an estoppel in pais on the part of the city authorities; the building having been located by the city surveyor and upon lines previously established and built upon. We are, therefore, of the opinion that there was no error in the charge given by the court below, and that the cases in 8 Ohio Rep., and in 5 Ohio St. R^p., do not in any manner conflict with the charge so given and herein approved. Judgment of the district court affirmed. Suture, C.J., and GIholson, Brinkerhoit and Scott, JJ., concurred.