Kennedy v. Le Van

Cornell, J. Whenever, as in the case at bar, the matter in dispute concerns a common-law dedication by the oAvher, and an acceptance by the public, of an intermediate portion of a continuous thoroughfare or line of road, evidence of the construction of any improvement, or the making of any repairs upon such line of road, under proper public authority and direction, on either side of the disputed portion, but sufficiently near, under the circumstances, to raise a reasonable presumption that they Avere done mainly in reference to the public use of the Avholo line, and could only be beneficially enjoyed in connection Avith such use, is cle'arly competent for the consideration of the jury upon the question of acceptance. Scribner v. Blute, 28 Wis. 148. If any such improvement is procured to be made by such OAvner, Avith knoAvlcdge of such circumstances — especially if occupying, at the time, an official position giving him any right to act on behalf of the public in the premises, and he [516] makes use of Ms official authority to that end — evidence thereof may also properly be received and submitted to the jury upon the question of dedication, and the intent to dedicate on the part of such owner. Within thesó rules the testimony received, against plaintiff’s objection, in regard to the construction of the culvert, and plaintiff's acts in connection therewith, as well as the expenditure of highway labor and money upon other portions of said continuous line of road in close proximity to the locus in quo, was clearly competent. The conversation of plaintiff with witness St. George, and also with witness Harvey, taken in connection with the other evidence in the case, furnished some evidence in regard to the intention of the plaintiff with reference to the public use of the road, both as originally travelled and as used after it was changed. The testimony of witness Ostrander, also, had a like bearing, and wo see no error in the rulings of the court in connection with any of this testimony. The remaining question to be considered arises upon exceptions taken to that portion of the charge of the court wherein the proposition is advanced that, in a common-law dedication of land to public use as a highway, {‘ an acceptance may be-inferred by the jury from long use by the public as a highway,” and to a refusal to charge that, “to constitute a dedication of a highway in this ease, the land being in an organized township in this county, such dedication must have been accepted by the corporate authority of the town or county.” The case of Phelps v. City of Mankato, (ante, p. 276,) recently before this court, and decided at the present term, was an action wherein the city was sought to be charged on account of negligence in not keeping a certain street within its corporate limits in a safe and suitable condition for public travel, whereby the plaintiff therein suffered injury and damage. The point was specifically raised and made in that [517] case, and overruled by this court, that such street had never been laid out, opened, or offered for public travel by any official authority, and the duty to keep it in safe condition did not attach until there had been some official action on the part of the municipal corporation making or recognizing such street. In the opinion of the court, as given in that case, it is said to be immaterial how the street became such, whether by formal official action of the city in accepting its dedication, or by acceptance by user on the part of the public, so far as concerned the duty of the city to keep it in safe condition. The principle of this decision would seem to be decisive upon the point that, in a dedication at common law, as against the party making it, an acceptance may be shown by common user by the public, and that no action on the part of any municipal authority or body is necessary to the establishment of a highway by dedication; nor need any evidence be introduced of any such action in order to prove the fact of acceptance by the public. At the time when the highway in controversy in this case is claimed to have been dedicated and accepted, it is not pretended that any statutory provision existed making the acceptance of a dedication dependent upon the action of any municipal body or corporation, or in any way modifying the rules and principles of the common law governing in matters of this kind. The ■question presented, then, must be determined in accordance with those principles. The very nature of a common-law dedication, as applied to the establishment of public highways, irirplies the gift of an easement for travel to the entire public, which includes not only the citizens of the particular town wherein is located the land which is thus subjected to the easement, but the whole state. The acceptance essential to complete the dedication must be by, or for, the same public, and not by any part less than the whole. How it is to be proved is a question purely of evidence, and although any act done for the public upon such highway, by any [518] town or authority charged by law with the duty of taking care of the streets and highways, may be and is regarded as evidence to show an acceptance by the public — because, doubtless, of the presumption that, in the discharge of this duty, no town authority will permit highway work to be done, or money to be expended, upon other than lawfully established streets — yet it is only evidence of an acceptance, and not the acceptance itself, by the public. Though such evidence is strong, and perhaps, in most cases, controlling, it is difficult to perceive wherein it is of any greater weight, or more conclusive in its effect, than is the fact that the public itself has for a long time used the road as a highwajr, without objection. Such common user by the public is the very highest kind of evidence that the highway is one of common convenience and necessity, and therefore beneficial to it, from which fact an acceptance is presumed. Guthrie v. Town of New Haven, 31 Conn. 308. See, also, Green v. Town of Canaan, 29 Conn. 157 ; Buchanan v. Curtis, 25 Wis. 99. As applicable to the testimony in the present case, the law was correctly given by the court in its general charge to the jury, and neither of the exceptions was well taken. Judgment affirmed.