Onstott v. Murray

Dillon, J. 1. Highway: dedication: use and acquiescence. To the printed arguments of the respective counsel, we have given that careful attention which is due 6ie laborious research and marked ability which they display, as well as to the important questions involved. The adjudged cases, with respect to highways by dedication or by prescription, are not, in all points, susceptible of being reconciled. Some deny that highways can be established by prescription, and affirm that they can be established in two ways only: first, under the statute; and, second, by dedication. Other cases hold that highways may derive a lawful existence from long continued use by the public under a claim of right. The cases differ as to the effect of long user by the public. Some hold that, if continued for the period which, under the statute of limitations, would bar the right of the owner of land to recover the same, this is conclusive evidence against the owner, of an intent to dedicate for a highway the land so used. The period fixed by the statute of limitations- is applied to such cases by way .of analogy. [467] Others hold that user, even for such a period,, does not conclude the right of the owner, who may, nevertheless, show that he did not intend to dedicate, and rebut, if he can, any presumption of such an intent derived from mere use by the public. Many of the authorities make the effect of user by the public, depend largely upon the character of the land and of the country in or thfough which the highway is situate. We propose to limit our examination of this subject to the questions arising upon certain instructions to the jury, and to state, rather than argue and discuss at length, our view of the law applicable to those questions. The third and fifth instructions asked for by the plaintiffs and given by the court to the jury, are as follows: “ 3. No right of way or road by prescription or use alone, without evidence'• of dedication, can be acquired over uninelosed prairie, wood or timber land, and to support the claim of dedication, either an express grant must be shown, or some affirmative act on the part of the owner clearly showing his intention to dedicate it, or to allow the use of it' as a public road.” “5. Mere acquiescence in the use of uninelosed prairie or woodland, for a road, during a period of time, however long, will not be evidence of dedication, and to support the claim of dedication, either an express grant must be shown, or some affirmative act on the part of the owner clearly showing his intention to so dedicate it or allow the use of it as a public road.” It is correctly stated by the appellee, in his written argument, that these two instructions “bring squarely up, the point of contest in the case, whether use, alone, by the public, for time, however long, of uninelosed prairie or timber land, will make a public highway; and whether to sustain a highway over such lands by dedi [468] cation, some affirmative act clearly showing an intention to dedicate must be proven.” It is our opinion that, in the third and fifth instructions, supra, the law is too broadly stated. These instructions lay down the proposition that, however long a road may be used by the public, and however long the owner of the land may acquiesce therein, these facts “ will not be evidence of a dedication, and to support a dedication either an express grant must be shown, or some affirmative act on the part of the owner clearly showing his intention to dedicate it or allow the use of it as a public road.” We are of opinion that long use, aud long acquiescence in such use by the owner of the land, are, in and of themselves, evidence of a dedication. How much weight they are entitled to, depends upon the situation of the land, thenatui-eof the right claimed and exercised by the public, the knowledge of the owner, etc. For example, there is evidence in this case tending to show that the road in question was traveled by the public for nearly or quite twenty-five years, and that the public authorities, claiming it to be a public highway, had expended money and labor in its amendment and repair. Suppose the defendant knew these facts and never objected until 1862, would there not be here evidence from which a court or jury would, should, or might find a dedication? Yet there would be “no express grant” and “ no affirmative act ” on the part of the owner, there would be only “ long use ” and “ mere acquiescence.” 2. — statute of limitations. "We are prepared to go further, and to say, if the public, certainly where this is with the knowledge of the owner, has claimed and continuously exercised the right of using land for a public highway, for a period equal to that fixed by the statute for bringing actions of ejectment, their right to the highway, as against such owner, is complete, there being no [469] proof that the road was so used by leave, favor or mistake. How far the owner is bound, if at all, to take notice of the rights claimed by the public over his land, we need not stop to discuss. • In thus stating our views of the true doctrine on this subject, it is proper to add that this doctrine should be carefully applied, especially to uninclosed and open lands. A landowner is not to be concluded, who, without knowing that a claim of right is being asserted on the part of the public, allows his neighbors to pass over his land for them mere accommodation to obtain fuel, or for other like purposes. A block of land often lies open in a town or city, and, for mere convenience, foot passengers or even wagons may for years pass -over it diagonally, making thereon a well defined path or road. Ordinarily, there would be here no dedication, however long this was continued. But if the same amount of travel were at the end of a recorded street, and between that and another street, long use and long acquiescence would be evidence, and, if continued sufficiently long, might be conclusive evidence, of a dedication. And the same principle will measurably apply to roads in the . country. 3. — case varied by circumstances. In the ease at bar we have not before us the evidence so that we can form any opinion upon the merits. If it was a mere neighborhood, local or timber ° ' , road, much stronger evidence ox a dedication by the owner, or prescriptive right by the pxiblic, would and should be required, than if it wei-e a thoroughfare, or part of an acknowledged highway between towns, or leading to a town, and as such constantly traveled. In cases of implied or presumed acquiescence or consent on the part of the owner, very much depends upon the location of the road, the amount of travel, the nature of [470] the use by the public, the rights asserted by the public, the knowledge of the owner, and like circumstances. Each case must be largely decided upon its own circumstances. But we cannot go to the length asked by the appellee’s counsel, without laying down principles which would blot out a vast number of highways in the ¡átate, which have no other .legal existence (many of the early 'records being lost or very imperfect) than that which is derived from long and uninterrupted use by the public. Reversed.