Gwynn v. Homan

Perkins, J. Iloman sued Owynn for obstructing a street in the town of Cartersburg, whereby special damages resulted to the plaintiff. Trial upon a general denial; judgment for the plaintiff. The case turns upon the question, whether the place obstructed was a public street. All the evidence given upon the trial is in the record; and we think it fails to establish the fact of the street. What is evidence of the existence of a street in a town or city? How may the faét be proved? It may be proved: 1. By a public plat of the town or city, on which the street is laid ■ down, together with user by the public of the designated ground as a street. The mere platting by the proprietor, without a sale of lots adjoining, or user by the public, does not seem to be sufficient. See United States v. Chicago, 7 How. (U. S.) 185. And where it becomes necessary for a party to rely on the fact of a dedication by a plat, to make out the existence of a street, the plat, or a record of it, is the best evidence of the fact. It is not necessary, in such case, to prove that the town or city is incorporated; for an unincorporated place may have public streets or highways. 2. The fact of a street, or highway, may be proved, by showing a parol dedication to the public, accompanied by user by the public. See Ind. Dig., infra. 3. Such fact may be shown by proof of acts on the part of the owner, such as selling lots on opposite sides of a strip of ground suitable for a street of highway, and standing by and seeing it used by the public as such; or standing by and permitting such user, for a time, and under circumstances, evidencing a dedication. See Ind. Dig. 392; Ang. on Highways, § 113, et seq. 1. By showing a taking, by lawful authority, for public use. In the case at bar, no plat, or record thereof, was given in evidence; and there was no evidence of any other act of dedication, or appropriation by authority, or of user by the public, to show the existence of a public street at the place where it was alleged to have been obstructed. C. C. Nave and J. Witherow, for appellant. Per Curiam. The judgment is reversed, with costs. Cause remanded for new trial.