Manderschid v. City of Dubuque

Beck, J. —The questions, both of law and fact, arising in this case, relate to the character of the Sixth street extension; whether in contemplation of law it was, at the time of the injury complained of, a highway. It is not denied, that, if it in fact was a highway, defendant is liable in this action, and that the verdict and judgment should be sustained. To these questions alone is our attention directed by the argument of the counsel of the parties, and no others will be considered. There is no evidence contained in the record tending to show that the street extension in question had been established as a highway under authority of legislative enactment— that it was a highway under any statutory law of the state. If a highway at all, it is such by dedication of the owner of the soil and acceptance by the city, and this is the main point to be determined in the case. i. highway : acceptance by the public. I. In order to sustain a highway by dedication it is necessary to show, not only that which inlaw will amount to a dedication on the part of the owner of the soil, but also the acceptance of the liighway as dedicated by the public. This is especially necessary when the municipality or other body burdened with the duty of keeping it in repair is charged with negligence of that duty, and damages are sought to be recovered therefor. [79] 2_Whatwm deification by owner. [78] We will first inquire what will sufficiently establish in law the dedication of land for a highway by the owner [79] so^' No particular form need be pursued by the owner in order to dedicate the land for tbe purpose of a highway. Any act indicating a clear intention to dedicate is sufficient. The intention of the owner to set apart the lands for the use of the public as a highway — the animus dedicandi — is the foundation principle, the very life of dedication. When this is unequivocally indicated by the acts of the owner of the soil, so far as he is concerned, the dedication has been made. It follows that dedication is a conclusion of fact to be drawn by the jury from the circumstances of each case, and the question to be determined by them, as against the owner of the soil, is whether the animus dedicandi sufficiently appears from all the facts of the case. 2 Smith’s Leading Cases, Hare & Wallace’s notes, 181, et seq., and authorities cited; Angell on Highways, § 142; Onstott v. Murray, 22 Iowa, 457. 3. — oiroumwhich deatf presumedf II. It has been held that long use of the lands by the public as a highway is evidence of a former dedication. The period of continued and uninterrupted use by the public which will raise, the presumption of dedication in some states corresponds with the term fixed for the limitation of real actions. Such has been the ruling of this court. Keyes & Crawford v. Tait, 19 Iowa, 123; Onstott v. Murray, 22 id. 457. In other states a period of time, shorter than that required to limit an action to recover lands, during which the use by the public has continued, has been held sufficient to raise a presumption of dedication. See authorities cited in Angell on Highways, § 143, et seq., and 2 Smith’s Leading Cases, Hare & Wallace’s notes, 180, et seq. III. Use by the public of a highway during a time of [80] whatever duration is not the only circumstance that will raise a presumption of dedication. It may be shown by other facts, from which may be properly inferred an unquestionable intention to dedicate the land for the purpose of a highway. Acts of the owner of the land, implying his assent to its use as a highway and indicating an animus dedicandi, when accompanied by user on the part of the public, without regard to the time during which they way has been used, are sufficient to authorize an inference of prior dedication. Marcy v. Taylor, 19 Ill. 634. Thus, where the land owner built a street upon his premises which was used as a highway, it was held to amount to a dedication. Lade v. Shepard, 2 Strange, 1004. Selling lots abutting upon land used as a way ; describing highways as such in a map or plot by the land owner; standing by and seeing ways improved or made, and other like acts which induce the public to believe that the land is set apart as a highway, — will raise a presumption of dedication. See authorities cited in Angel on Highways, § 143, et seq., also the following cases, illustrating the application of this doctrine. Connor v. President and Trustees of New Albany, 1 Blackford, 43; Gwynn v. Homan, 15 Ind., 201; Williams v. Wiley, 16 id. 362; State v. Atherton, 16 N. H. 203; Lownsdale v. Portland, 1 Oregon, 397; Harding v. Jasper, 14 Cal., 642. i. — construe-by owner. The act of the owner of lands within the limits of a city, in constructing a street over them, and the necessary bridges suitable for the public travel, and m throwing them open to public use, appears to be the clearest expression of an intention to dedicate, and in the absence of evidence showing a contrary intention ought to be so held. Lands in a city are rendered more valuable by the increase of facilities of approach to and over them, and may thus be made more [81] useful for all purposes of city lots. Unless there be something to indicate otherwise, it will be presumed that a street opened and constructed by the owner of such lands, was established with a view to increase the value of his property by thus dedicating a part of it to the public use. B _ t amounts to acceptance bythe public. IY. We have seen the acceptance by the public of the highway is necessary to effectuate the dedication. This is certainly true, in order that the proper public authorities maybe charged with the , , . burden oi keeping the way in repair, and, consequently, liable' for neglecting so to do. It will be necessary next to inquire what amounts to an acceptance and what is sufficient evidence thereof. It is probably the settled doctrine in England, that no formal acceptance other than public use is necessary, in order to make the dedication of a highway effectual. See Angel on Highways, § 158. While this rule is not uniformly recognized in this country, yet it is believed that the weight and prevailing current of authorities support it. Curtis v. Hoyt, 19 Conn. 154, 169; Baker v. Clark, 4 N. H. 380; State v. Nudd, 3 Foster, 327; Cole v. Sproul, 35 Me. 161; The people v. Beaubien, 2 Doug. 256, 286; State v. Cutten, 3 Ut. 530; Morley v. Taylor, 19 Ill. 634; Green v. Canaan, 29 Conn. 157; Boyce v. The State, 16 Ind. 451; Norse v. Ranno, 32 Vt. 600; Holdam v. Cold Spring, 21 N. Y. 474; Gwynn v. Homan, 15 Ind. 201; Leech v. Waugh, 24 Ill. 228; Connehan v. Ford, 9 Wis. 240; Daniels v. The People, 21 Ill. 439; Holdam v. Trustees of Cold Spring, 23 Barb. 103; Jennings v. Inhabitants of Tisbury, 5 Gray, 73; Bissell v. N. Y. Central R. R., 26 Barb. 630; Hays v. The State, 8 Ind. 425; The State v. Hill, 10 Ind. 219; Smith v. The State, 3 Zab. 130; State v. Sarton, 2 Strob. 60; State v. Atherton, 16 N. H. 202. [82] It is held in Massachusetts that uninterrupted and general use by the public of a road as a highway for twenty years, the time fixed by statute for the limitation of real actions, is sufficient to charge a town with liability to keep it in repair, notwithstanding a statutory provision that no way which has not beeome public shall be chargeable upon a city or town as a highway, unless it be laid out and established by such town or city, in the manner prescribed by statute. Jennings v. Inhabitants of Tisbury, 5 Gray, 73; see Gen. Stats. of Mass. (1860), 243, 774. It has been ruled in Indiana, that use and repairs of a road, by the public, continuously for ten years or less, is sufficient to authorize a jury to infer dedication by the owner of the land over which the road passed for the purpose of a highway, although a statute of the state declares that all public roads which have been or may be used as such for twenty years or more, shall be deemed public highways. The State v. Hill, 10 Ind. 219. Work done by proper authority to repair roads used as highways, when no evidence of their establishment under statute, nor other evidence of acceptance is shown, has repeatedly been held sufficient to authorize the inference of acceptance, by the constituted public authorities, of ways dedicated to public use. Marcy v. Taylor, 19 Ill. 634; Folsom v. Underhill, 36 Vt. 580; State v. Atherton, 16 N. H. 203; People v. Jones, 6 Mich. 176; Alvord v. Ashley, 17 Ill. 363; The Commonwealth v. Belding, 13 Met. 10. The convenience to the public of a highway in question, coupled with use by the public, when dedication is sufficiently shown, may be proved in order to base a presumption of acceptance. Green v. Canaan, 29 Conn. 157; Guthrie v. New Haven, 31 id. 308. The several rules, supported by the authorities [83] above cited, are in harmony with reason and necessary corollaries from other undisputed doctrines. It cannot be denied, that long user by the public, repairs under authority of the proper public officers, and other acts of the public or of the proper authorities, are evidence of dedication as against the land owner in cases where he disputes the right of the public to the enjoyment of the easement. , User by the public for ten years, and in one case for a shorter period, has been held in this state sufficient upon which to base a presumption of dedication. See Keyes Crawford v. Tait, and Onstott v. Murray, supra. Upon evidence of this character land owners are deprived of the use of their lands, and fines and penalties are enforced in criminal proceedings, qui tam and other actions, in cases without number, to be found in all the books, both English and American. But to support a dedication, acceptance by the public or public authorities of the lands dedicated must, in all cases be shown, or proper evidence must be given from which it can be inferred. In such cases, acceptance, it is uniformly held, may be proved in the manner indicated in the authorities above cited, viz., by user, by repairs, etc. Now it appears to be unreasonable and contrary to the plainest principles of justice, that acceptance may be thus proved and inferred against the land owner, or those who are charged with the violation of law by obstructing a public way, and yet that the same evidence will be insufficient to prove the like fact when the public authorities are charged with neglect of duty or violation of law touching the highway, whereby the private citizen suffers loss. This would be establishing one kind of law for the citizen and another for municipa! and other quasi corporations and public officers; and the recognition of different rules of evidence in cases where the same facts and same issues are presented for [84] determination of the same or like rights, duties and legal liabilities. It is plain that acceptance may be proved, in a case against the public authorities for neglect to repair a highway resting upon dedication, by the same evidence that is sufficient to establish it in a case where the citizen is charged with obstructing a highway, as the owner is required to surrender his land under a dedication to the public. It has been suggested as an answer to this argument, that in cases against the citizen for obstructing the highway, or against the land owner who denies the dedication, acceptance is shown by the fact of the commencement of legal proceeding, prosecution, or the finding of the indictment; that is, whatever act is done or proceeding instituted to sustain the highway, as against the citizen, amounts to an acceptance by the public or the proper public officers. As a matter of fact, in no case can this view be sustained. The informer who institutes prosecutions, the grand jury that presents the indictment, or the citizen who brings a private action against one who obstructs a road, in no sense are clothed with authority to accept a dedication in behalf of the public. Besides, if this were admitted, such acceptance must, of necessity, be after the act causing the obstruction, and as acceptance is necessary to affectuate dedication, it follows, that at the time the act was done for which proceedings or prosecutions are instituted no dedication in fact existed. An argument, against the conclusion we have adopted, is based upon the ground of hardship to the counties and cities of the state if they are held liable to keep in repair highways not laid out and established under their authority, or not recognized by the formal act' of the proper officers or authorities of these corporations, expressed in a manner indicating the formal acceptance of the high [85] way as dedicated, as by resolution, order or ordinance of the proper authority of the county or city. The argument is, that these corporations will be burthened with liability growing out of claims for injuries resulting from defective highways of this character. The apprehension, we think, is not well founded. As a fact, it is well known that claims for such injuries are very infrequent. But a very limited number of such cases are within our knowledge, and we do not see that the rule we adopt will tend to increase them. However this may be, in our opinion if a citizen sustains injury by reason of a defective highway, which is recognized as necessary for the public convenience by public use and repairs made by public authority, he is as justly entitled to compensation as though the highway had been established by formal- act of the public officers entrusted with that duty. . The same argument could be made against all highways. If counties and cities may be burthened in this way, by highways by dedication and acceptance by the public, so they may be with those established in any other way. But this view cannot weigh against the wants and convenience of the public for necessary avenues of communication. Such wants being indicated by public travel and recognized by the public authorities, by repairs and in-other ways indicated above, it becomes clearly the duty of the counties and cities to provide for them, by keeping in repair such highways. It is doubtless within the power of the counties and cities to vacate, or by proper action to refuse to accept, highways established by dedication, so that it is impossible for land owners to force upon the public roads not necessary for the public convenience. Such as are necessary the public authorities ought to keep in repair. It will be noted that the question in this case, whether the highway as dedicated was accepted by the public, was [86] submitted by the instructions to the jury. This is a proper question of fact exclusively for the jury to determine. The evidence submitted in this case is competent upon that issue, as we have seen, under the foregoing authorities. We are not prepared to say that the verdict which implies the finding of acceptance by the public, is not supported by the evidence. Applying these doctrines, which are well supported both upon precedent and reason, we have no difficulty in sustaining the rulings and judgment of the court below. The law embodied in the instructions to the jury fully accords with the doctrines above announced. The instructions asked by defendant and refused, were either in conflict therewith or substantially given in another form, upon the courts own motion. Y. Under section 23 of the charter of Dubuque, it is provided that no addition to the city shall be lawful unless it be submitted to the city counsel, who have exclusive authority to provide for and regulate the width of streets and alleys therein. An objection is based upon this provision, to the effect, that upon the land over which the street in question passes the city council possesses exclusive authority to establish streets. But the defendant has failed to show that the street is within an addition, which is certainly necessary to bring it within the provision, even should we hold that it possesses the force and effect claimed for it, which by no means appears to us. Besides, we gather from the record that the island and slough over which the city extends is within the original limits of the city, and that an amendment of the charter contemplated the construction of the street over the same precisely in the manner the record describes the Sixth street extension. Acts 5th General Assembly, ch. 17, ^ 1. [87] 8. — effect of repKent [86] ' ' YI. It is objected that the repairs upon the street and bridge done by the city, as disclosed by the record, [87] were alter the injury which is the foundation of plaintiff’s action, and that therefore such facts are not proper evidence to show acceptance of the dedication. Defendant therefore argues, that the fourth instruction given by the court is erroneous, in that it was calculated to mislead the jury, there being no facts in evidence before the jury upon which it could have been based. In our opinion repairs subsequent to the injury are sufficient to show acceptance of the highway as dedicated. Not that the acts themselves amounted to acceptance, and, by retrospective effect, operated at a time anterior to the injury, but they are clearly competent to be given in evidence, as tending to show that the city had previously recognized and adopted the street. This rule is recognized in Folsom v. Underhill, 36 Vt., 580, a case in point fully supporting the view we have just expressed. 9'_muni0ipai Btreets^eading from city. VII. The second instruction is objected to on the ground that it is not applicable to the case made by the evidence. It is not claimed that it is erroneous as the announcement of an abstract principle of law, but that there are no facts contained in the record to which it is applicable. The bridge, it is insisted, is a quarter of a mile from the beginning of the extension at Sixth street proper. It is insisted that it cannot be possible the bridge is in such near proximity to the street, that, in contemplation of law, the city would be liable for injuries sustained by reason of its dangerous character. We think differently. It is the duty of the city, not only to keep the street in repair, but to erect barriers and protections to prevent travelers from passing, without its limits but in its general direction, into dangers and obstructions. The city cannot be permitted to suffer a street to terminate in a kind of a cul de sac leading to [88] precipices or pitfalls, whereby the life and property of the traveler is .endangered. The court by the instruction very properly left the'jury to determine whether the defective bridge was so near the public highway as to be dangerous to persons traveling thereon. See Davis v. Hill, 41 N. H., 329, and authorities there cited. It is the opinion of a majority of the court that no error appears in the record before us. The judgment of' the circuit court is therefore Affirmed.