Stickley v. Township of Sodus

Grant, J. (after stating the facts). Plaintiff claims that this private road has been converted into a public highway. She bases her claim solely upon the statute above cited, and insists that user alone by those having occasion to travel over it is sufficient to convert it into a public highway. The question, therefore, is, Under what circumstances does a private road become a public highway by user, as provided by the statute ? This road was originally built for private gain, over private grounds, and to a private dock and ferry. The record is absolutely barren of any testimony tending to show that the original owners of the land and the builders of this road intended to make it a public highway. At what period and by what acts was its private character changed into a public one ? It is true that for nearly 35 years every one who had occasion to pass that way walked or drove over it without objection from the owners of the land. Not only that, but those who built it and their successors invited every member of the public to use it, for every member of the public paid them for the use of the dock and ferry at its terminus. It is also true that, for the same length of time, the township authorities took no action, either in writing or by act, to indicate that the township ever intended to establish or accept this road as a highway, or that they considered the township liable in any way for its condition, or that they were under any obligation to keep it in repair. Its use by the public has been no other •or different during the past 30 years than it was the first year after its construction. There has been no change in the character of the travel. The relations between the owners and the public have never changed. Neither has done anything to indicate to the other that they understood that its original character had been changed. The learned counsel for plaintiff seem to be of the opinion that, when one opens a private road, it becomes his duty to put up some notice to show that it is not a public, but a private, way. They say in their brief: [516] “The record does not show that the owners of the land over which the road passed ever did a thing to show that they considered it other than a public highway. No one who desired to use it was ever turned back, or his right to use it questioned. • It was used as uninterruptedly by the public as Woodward avenue, in Detroit.” It would certainly be a strange rule which would require the original constructors of this road to turn people back, or question the right of any traveler to use it, when the traveler was invited to use it, and its use required the payment of toll at the dock or ferry at its terminus. The above statement made by counsel is undoubtedly true, for, the greater the travel, the more money for the owners of the dock and ferry. A private way is just as much open for use by those who have occasion to use it as is a public way. If Woodward avenue, in Detroit, which extends to the water line of the river, and was so established originally, had been laid out and constructed to within only 200 feet of the river, and the owner of the land between the foot of the street and the river had opened it for his own dockage and ferry purposes, had paved it, kept it in repair, and had not only permitted but invited the public to pass over it for ferriage to Windsor, Belle Isle Park, and other places upon the river, would such use for 10 or 100 years make it a public highway, take exceedingly valuable property from the owner for a public use, and impose heavy burdens upon the city of Detroit for neglect to keep it in repair ? If this be so, then every owner of land along the river front in the city of Detroit and elsewhere, who builds a private dock or establishes a ferry, and opens a road from the public highway to such dock or ferry, loses the title to his land by such use. No case cited maintains such a doctrine. The defendant township had constructed and maintained the River road and the Sodus road for the public use. There is nothing to indicate that its public authorities ever intended to adopt this road along the side of this steep bank as a part of its system of highways. A farmer may open a private road from one public high [517] way to another across his farm, which will accommodate not only himself, but all who choose to travel that way. His permission to the general public to travel that way is not an act hostile to his title, or to his right to close the road at any time. So a manufacturer may establish his plant in the center of his lands, and open a road to the public highway upon either side, and permit the public to use it, and merchants and peddlers to travel it, carrying their goods for sale to the houses^wned by him and occupied by his employés and tenants. But such use is permissive, and gives the public no permanent rights in it as a highway. So a mining corporation, as is often the case, constructs roads from the public highways in, over, and around its mine, built and kept in repair by the company, and permits the public the free use of them. But this does not make them public highways within the meaning of the statute. Such permissive or invited use is not that use contemplated by the statute which will convert a private road into a public highway. The use required by the statute is one accompanied by some act on the part of the township authorities open, notorious, and hostile to the private ownership; some act which gives the original owner notice that his title is denied. Alton v. Meeuwenberg, 108 Mich. 629 (66 N. W. 571); Diamond Match Co. v. Village of Ontonagon, 72 Mich. 249 (40 N. W. 448). Mr. Elliott says: * ‘ It must appear that the owner fully consented to the change, or there must be some element of estoppel to deprive him of his rights as the owner of the fee. Where a way is laid out and used as a private way, the mere fact that the public also makes use of it without objection from the owner will not make it a public way.” Elliott, Roads & S. § 5. This doctrine applies with special force to those roads built in a new country, and for such purposes as was the road in question. The mere use, however long, is not sufficient to effect a change. District of Columbia v. Robinson, 180 U. S. 92 (21 Sup. Ct. 283); Lewis v. City of [518] Lincoln, 55 Neb. 3 (75 N. W. 155); Speir v. Town of New Utrecht, 121 N. Y. 429 (24 N. E. 692); Lewis v. Railroad Co., 123 N. Y. 502 (26 N. E. 357); Downend v. Kansas City, 156 Mo. 60 (56 S. W. 902, 51 L. R. A. 170); Stewart v. Frink, 94 N. C. 487 (55 Am. Rep. 619);. Root v. Com., 98 Pa. St. 170 (42 Am. Rep. 614). In Speir v. Town of New Utrecht it is said: ‘ ‘ The mere fact that a portion of the public travel over a road for 20 years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be' kept in repair or taken in charge and adopted by the public authorities. * * * A private way, opened by the owners of the land through which it passes for their own uses, does not become a public highway merely because the public are also permitted for many years to travel over it.” In Stewart v. Frink it is said: “It would be unjust, as well as ungracious, to take advantage of his [the landowner’s] generous permission to use his land for public convenience, and the law will not allow this to be done.” This statute was not passed with the view to convert private roads into public ways. It was designed to remedy defects in establishing and recording highways. Green v. Belitz, 34 Mich. 512. Among the cases cited by counsel for plaintiff as conclusive of their position is Ellsworth v. City of Grand Rapids, 27 Mich. 250. That case well illustrates the purpose of this statute and its necessity. The road there in dispute was originally laid out by the commissioner of highways, but there was a mistake in the survey or in recording it. It formed one of the principal thoroughfares in and out of the city of Grand Rapids. Immediately after it was laid out, it was worked by the city authorities, and continued to be worked and maintained solely by them. The language relied upon in that case has no' [519] application to a case like the one now before us. In all the cases cited, the municipal authorities had taken some action hostile to the claim of the landowner that it was a private road, and by failing to assert his rights he was estopped after 10 years from setting them up. The action of the board of supervisors in establishing a ferry has no significance. It does not even tend to show that the supervisors considered the road a public one. But, even if they did, they could not bind the township. The river was navigable, and, under the statute, the board of supervisors had control over bridges and ferries across it, and, under the police power, were authorized to license private ferries and establish requirements for their management. The judgment is reversed, and a new trial ordered. Hooker, C. J., Moore and Montgomery, JJ., concurred.