Pitser v. McCreery

Myers, J. Appellant presented to the Board of Commissioners of the County of Delaware a petition filed in the auditor’s office August 14, 1906, under §7663 Burns 1908, Acts 1905, p. 521, §15, to have ascertained, described and entered of record a certain described public highway alleged to have been used for twenty years. The petition alleged that the highway passed along and upon the land of the petitioner and also the lands of appellee and others. Appellee appeared before the board of commissioners and filed an answer of general denial to the petition. Upon a hearing the board found in favor of appellant, and — 665 — entered an order in accordance with the prayer of the petition, from which order appellee appealed to the Delaware Circuit Court, where the cause was tried without a jury, a special finding of facts made, conclusions of law stated, and judgment rendered against appellant, from which judgment he appeals, assigning errors upon the conclusions of law, including assignments of errors upon the action of the court in withdrawing its findings and conclusions and amending the findings and conclusions of law. The same proceeding was before this court between appellee, then appellant, and another, in McCreery v. Fallis (1904), 162 Ind. 255. The court made and filed its special findings and conclusions of law July 22, 1907, to which conclusions of law appellant excepted, and on July 29, 1907, the court on its own motion withdrew the findings and conclusions, and filed amended findings and conclusions of law. 1. Appellee has filed a motion to dismiss the appeal on the ground that the other landowners, over whose ground the highway passes, have not been joined as appellees. That motion must be denied. No person except appellee resisted the petition or proceeding at any stage. The appeal was taken in term, and it was not necessary that any person be joined as appellee, other than the party who was adversary, and who alone recovered judgment. The others are parties to the record, but not to the judgment, and in such ease they are not necessary parties to the appeal. Keiser v. Mills (1904), 162 Ind. 366; Small v. Hammes (1901), 156 Ind. 556; Lowe v. Turpie (1897), 147 Ind. 652, 37 L. R. A. 233. 2. Appellant complains of the fact that the court withdrew its special findings and conclusions, and refiled them with some additions to the findings. This action appears to have been taken at the same term at which the first finding was made, and the rule is settled that trial — 666 — courts have this right, and the action was not error. Royse v. Bourne (1897), 149 Ind. 187; Thompson v. Connecticut, etc., Ins. Co. (1894), 139 Ind. 325, 349. We append a plat of the locality: The findings show that one Woodring in 1878, and for many years prior thereto, and up to about the year 1900, was the owner of, and resided upon, the northeast quarter of section three, his residence, with barns and other buildings, being located about forty rods east and sixty rods south of the northwest corner of the quarter section, and fronted on the way in question. Appellee, in the year 1878, and for many years prior thereto, and ever since, owned and resided on the east half of the northwest quarter of the section, his residence, with barns and other buildings, being located about sixty rods south, and twenty rods west of the northeast corner of his land, and fronted on the way in question. ' For more than forty years prior to August 14, 1906, the way was opened and fenced on both sides from the east to the — 667 — west line of the Woodring land, varying in width from nineteen to twenty-five feet, and opened upon a public highway at its east end, and people had residences along it, and they and the public generally traveled it, and it was the only means of ingress to and egress from the residences on the line. In the year 1878 appellee made a roadway, fencing it on both sides, from a point midway of his west line, wholly on his own land, north about one hundred and seventy-five feet, and thence east about sixty rods to his residence. This way was constructed for his personal convenience, and furnished the only way of ingress to and egress from his land. The north and south portion of said roadway, when first opened, was about fourteen feet wide, and connected with a gravel road. In 1886 he increased the width for his own convenience to sixteen and one-half feet, and fenced it on both sides, and thereafter increased the width to twenty-four feet. Residences have been built and have existed for more than twenty-seven years along such way, from the east to the west end thereof, which furnishes the only way of ingress to and egress from them. In the year 1878, after opening the west end of said roadway, as herein shown, appellee opened the way east from his residence to his east line, and fenced it on both sides, the width being about twenty-one feet at the east end. At about the same time Woodring extended the way north on his own land, fencing it on both sides, a distance of about one hundred and fifty feet, where it connected with the old way running east, and thus produced a continuous way from the east line of the Woodring land to the west line of appellee’s land, and from that time until the filing of the petition herein, a period of twenty-seven years, .the way, opening at both ends upon public highways, was open, and was fenced on both sides throughout its length, and furnished the only means of ingress to and egress from the residences located along such way. It had a well-worn, well-defined and well-beaten track from end to end, made by the travel over it of the public and the persons residing along — 668 — the way. The public generally has continuously traveled the way, at its pleasure, in wagons, buggies, vehicles, on foot, and on horseback as it desired, without let or hindrance from the landowners, except for the obstructions hereafter named. From 1881 to 1886 Woodring erected, and suffered and permitted to be erected, fences, gates and bars at different places and some distance apart, making pens and enclosures in parts of the way, in which he kept and fed stock for weeks at a time, and travelers on the road laid down, passed through, and laid up the fences, and opened the gates and passed through; but it is found that these obstructions were not placed in the road for the purpose of interfering with travel, but for the personal convenience of Woodring. In October, 1880, Woodring objected to the hauling of gravel over the road, on the ground that it was a private way, and hauling would cut it up, but he permitted the returning empty wagons to be driven back over the road. From 1882 to 1892 appellee frequently and repeatedly obstructed the way on his own premises. In 1887 he placed logs so as to occupy one-half the way, where they remained a number of years. In 1885 he dug a ditch four and one-half feet deep, and three feet wide across the way, which was suffered to remain open two or three weeks, during which time teams and vehicles could not cross the way. In 1887 he placed rails on and across the roadway for about forty rods of its length, during which time vehicles could not pass. During the years 1882 to 1892, he erected fences and gates on and across the way, and maintained them for weeks and months at a time; these fences and gates were placed so as to form pens, in which to detain and feed stock, and these obstructions interfered with, intercepted and hindered travel over the way, but it is found that they were so placed for his own convenience and not for the purpose of obstructing travel. On August 10, 1900, one Fallís and others, grantees of Wood-ring, filed a petition to have such way ascertained, described and recorded as a highway by twenty years use. That pro — 669 — ceeding was reviewed in McCreery v. Fallis (1904), 162 Ind. 255, and remanded to the Delaware Circuit Court, and was dismissed for want of prosecution, June 6, 1906. On December 8, 1901, appellant became the owner of the fifty-eight acres, heretofore described. In July, 1906, appellee erected wing fences and gates, one at each end of the way, on his own land, which appellant tore down and removed the same day, or the day following. At the time of appellant’s purchase, he lived eighteen miles from the locality, and until a few days prior to filing the petition herein he had no notice or knowledge of the claim of appellee that the way through his land was not a public highway. ITis purchase included the portion of the Woodring land on which the Woodring residence was situated, and upon which way it fronted, and in which he has since resided, and there was no other means of getting to or from such residence from the west. 3. The court concluded from the foregoing facts that the way was not a public highway, and that the petitioner was not entitled to have it declared and recorded as such, and that appellee should recover costs. The correctness of these conclusions is the only question presented. Under the statute but one question is presented, and that is, Has the road been used as a highway for twenty years? §7663 Burns 1908, Acts 1905, p. 521, §15. If it has, the statute fixes its status as a highway, and it is wholly immaterial whether the use has been with the consent, or over the objection of the landowner. Southern Ind. R. Co. v. Norman (1905) , 165 Ind. 126; Strong v. Makeever (1885), 102 Ind. 578, 584; Green v. Elliott (1882), 86 Ind. 53; Gillespie v. Duling (1908), 41 Ind. App. 217; McClaskey v. McDaniel (1906), 37 Ind. App. 59; Brown v. Hines (1896), 16 Ind. App. 1, 3; Louisville, etc., R. Co. v. Etzler (1892), 3 Ind. App. 562. It is not a question of a common-law dedication, or a way strictly by prescription, though analogous to the latter. Pittsburgh, etc., R. Co. v. Town of Crown Point — 670 — (1898), 150 Ind. 536, 547. It is a statutory highway, by twenty years’ user, irrespective of all other methods of creating highways. It is a highway created by statute. 4. If a highway arises by dedication, user for twenty years is not essential. A highway arising by prescription strictly, if highways can properly be said to arise by prescription, involves the question of an adverse use, but this statute involves neither of these considerations, and this furnishes the reasoning of the cases, that it is immaterial under this statute, whether the use is with the consent, or over the objection of the landowner, and in either event if the use exists for the statutory period, the status of the road is fixed as a highway. “The statute does not affect a remedy merely, but establishes a right.” Strong v. Makeever, supra. “User for twenty years vests an indefeasible right in the public.” City of Fort Wayne v. Coombs (1886), 107 Ind. 75, 79, 57 Am. Rep. 82. “The law makes the lapse of time sufficient, without any other evidence.” Ross v. Thompson (1881), 78 Ind. 90, 98. “When a way has become a public highway by user, it is such regardless of any question of public utility.” Washington Ice Co. v. Lay (1885), 103 Ind. 48, 55. “Under the issues joined on this petition, it was immaterial whether there had been any dedication or not, or any attempt to lay it out. It would become a highway and appellees would have just 'as great a right to the relief asked in case the highway, if the use had been without the consent, or over the objection of the adjoining landowners, as if it had been dedicated by them, if it had been continually used as such for the twenty years.” McKeen v. Porter (1893), 134 Ind. 483, 489. In the ease last cited it was held that evidence of opening and paving the way, was admissible as tending to show an opening for public use, and might tend to show dedication to the public use, yet the user, must be shown, under the statute in question. The way does not arise from dedication, but from the user under this particular statute, under which the — 671 — claim is made, and dedication or the intent of the owners is unimportant. Schwerdtle v. Placer County (1895), 108 Cal. 589, 41 Pac. 448; LeRoy v. Leonard (1895), (Tenn.), 35 S. W. 884; Smith v. State (1851), 23 N. J. L. 130; Lemon v. Hayden (1860), 13 Wis. 177. 5. If the consent or objection of the landowner is equally immaterial in creating the way, it must be evident that no question of common-law prescription strictly arises, because adverse use is of its essence, unless it can be said that use, over objection, shows the adverse claim of the public; but that will not do, for, if that were so, use by consent could never ripen into a right or establish a highway under this statute; and it is equally certain that the question of dedication is not an element in the consideration, but the statute fixes the status of the way, irrespective of prescription or dedication. Speir v. Town of New Utrecht (1890), 121 N. Y. 420, 24 N. E. 692. 6. Use then is the sole test; but what character of use? Manifestly the use which the statute defines; use as a highway. What is use as a highway? “A public road which every citizen of the State has the right to use for the purpose of travel thereon.” Board, etc., v. Castetter (1893), 7 Ind. App. 309. See, also, Wild v. Deig (1873), 43 Ind. 455, 458, 13 Am. Rep. 399. “A passage open to all the citizens of the State, to go and return, pass and repass, at their pleasure.” Morse v. Sweenie (1884), 15 Ill. App. 486, 492. See, also, Starr v. Camden, etc., R. Co. (1854), 24 N. J. L. 592, 597. “ ‘Every thoroughfare which is used by the public, * * * whether it be a carriage way, a horseway, a footway, or a navigable river.’ ” Packet Co. v. Sorrels (1887), 50 Ark. 466, 8 S. W. 683. See, also, Morgan v. Reading (1844), 11 Miss. 366, 406. “Every kind of public way, common to all citizens, whether a footway, a horseway or a cartway, or a way by water.” Heyward v. Chisholm (1858), 11 Rich. Law (S. C.) 253. Neither is it a question of the frequency of use, little or much used, or as to — 672 — the number of users. If it is free and common to all who have occasion to use it, it is a public highway. Elliott, Roads and Sts., 7; Louisville, etc., R. Co. v. Etzler, supra; Village of Grandville v. Jenison (1898), 84 Mich. 54. Under a statute similar to our own, it was held in Speir v. Town of New Utrecht, supra, that the user creating the easement must be like that of highways generally. It was also held that “the way must not only be traveled upon, but it must be kept in repair, or taken in charge, and adopted by the public authorities.” This, however, is not the rule in this State, and our decisions have made a distinction between dedication, in which the elements of intention and acceptance are involved, and a statutory highway by user. In the New York eases this distinction seems to have been overlooked. We would not be understood as declaring, even under this statute, that the use need not be under a claim of right. But, in line with the decided cases, the use may be either with the owner’s consent or over his objection. The fact of public use with consent is more than a permissive use, for it involves concession, much more than permission, which implies use upon request. Use with consent is, in effect, under a claim of right; while use over objection is high evidence of a claim of right. The interruption must be of the right, and not of the use, in order to avoid the operation of this statute. Shellhouse v. State (1887), 110 Ind. 509; Township of Madison v. Gallagher (1895), 159 Ill. 105; Toof v. City of Decatur (1885), 19 Ill. App. 204; Hart v. Town of Red Cedar (1885), 63 Wis. 634, 24 N. W. 410; Jones v. Davis (1874), 35 Wis. 376; Bartlett v. Boardmore (1890), 77 Wis. 356, 46 N. W. 494; Kelsey v. Furman (1872), 36 Iowa 614; Webster v. City of Lowell (1886), 142 Mass. 324, 8 N. E. 54. 7. The findings in this case are somewhat confusing, if not contradictory. It was found that appellee in opening up the west end of the way did so for his own convenience. It was not so found with respect to the east end, which was opened and connected with a road which had — 673 — been, open to public travel for many years prior thereto. It was found that on a number of occasions both Woodring and MeCreery obstructed the way so that travel was interfered with and interrupted, but it was found that these obstructions were not placed in the way for the purpose of obstructing travel, but for the convenience of the landowners ,* and also that the public continued to assert the right of user, though impeded, and the inference is clear from these findings that the interruptions were of the use itself, not of the nature of denials of the right of use, but of sufferance in the public, for it was found that, except for these interruptions, the way has been fenced on both sides from end to end, and has‘been continually traveled and used by the public generally. It is insisted by counsel, and was evidently the view taken by the court below, that these interruptions were interruptions of the right of use; that the overt acts of placing these obstructions in the way being consistent with the use of the way as private, were sufficient to prevent the acquisition of a public right. We are not able to bring ourselves to that view. Such acts might be done on an acknowledged public highway. True, they might lead to the prosecution of the offender; and while they might impede public travel, they would, in no sense, be denials of the right of public travel, for it is the right, rather than the character of the use which is the important question. If appellee had desired to prevent the acquisition of a public right, he was required to do more than he is found to have done. His acts, it is true, might evince some denial of the public right, but the public continued to assert its right, and this he has not denied. Had he intended to prevent the ripening of this right into an indefeasible one in the public, it would have been an easy matter to prevent it by gates, or some other appropriate obstruction at each end of the way, and by denial to, and exclusion of, the public from the right of passing that way, or by legal proceedings; but he seems to — 674 — have done neither. Rather, it seems to us, he puts himself in the equivocal situation of asserting an anomalous way, open for all purposes of the public, with the reserve right in himself, subject to the public sufferance, of interfering with travel, solely as a matter of convenience, and not as of right. 8. 9. It is also urged that because, ever since the first petition was filed, appellee has been contesting the claim of the public, it cannot be said that he should do more. Appellee’s objection on that ground is not tenable for two reasons: (1) Because the full twenty years’ user had ripened the way into a highway, if at all, before the first petition was filed, and that fixed the status of the way; (2) because the public has continued, up to the time of trial, and for twenty years prior, to lay down fences, to open gates, and to assert the right to use the way, and also to use it—in itself a finding of adverse assertion by the public, and undenied by appellee. The fact that the way has been widened from time to time, is not a matex-ial matter, for the width at the end of the twenty years ’ user is the width the statute fixes as the width of a highway. Epler v. Niman (1854), 5 Ind. 459; Hart v. Trustees, etc. (1860), 15 Ind. 226. 3. Reliance is placed by appellee on the cases of Shellhouse v. State, supra, Nowlin v. Whipple (1889), 120 Ind. 596, 6 L. R. A. 159, Null v. Williamson (1906), 166 Ind. 537, Parish v. Kaspare (1887), 109 Ind. 586, Davis v. Cleveland, etc., R. Co. (1894), 140 Ind. 468, Conner v. Woodfill (1890), 126 Ind. 85, 22 Am. St. 568, Baltimore, etc., R. Co. v. City of Seymour (1900), 154 Ind. 17, Fankboner v. Corder (1891), 127 Ind. 164, and numerous other cases in this and other states involving questions of adverse use, permissive use, and purely prescriptive claims, principally apply to private eontrovex’sies, and criminal prosecutions, in which all presumptions are indulged in favor of defendants. The learned counsel for appellee have as — 675 — sembled in their brief a very valuable collection of cases on those points, but they are not of controlling influence under the findings in this case, under which appellee, in effect, has conceded the right of the public, if not invited the use. While acts of interference ought not to be ignored, and may in a particular case be of controlling influence independently of any declaration, the acts of interruption shown, evince an innocent lack of knowledge of the rights of the public upon highways, rather than a purpose to deny them, and are consistent with this view. The continuous use by the public, in the manner found, evinces an unmistakable assertion of an adverse right, and, under the facts found, the interruption of the enjoyment would materially affect the public accommodation and private rights, and the way should be declared a public highway, and recorded as such. The judgment is reversed, and the circuit court is directed to restate the conclusions of law in accordance with this opinion, and render judgment accordingly.