Stevens v. Nashua

Sargent, J. The place of the accident, as described in the case, and the streets mentioned, will be substantially represented by the following diagram: — 195 — The dark lines represent Main and Water streets as originally laid out. a is the stone post, the corner bound of land deeded to Goodrich in 1832, which land was bounded east by Main street and south by Water street. The spot c shows where the accident happened. The shop in the corner was set back 8 feet from Main street, and 5 feet from the line of Water street,, as originally laid out, and these spaces have been used by the owner of the comer lot and by the public as side walks. The case finds that this space on the west of Main street had been used as a side walk in connection with a similar walk on the same side of Main street and extending south from Water street, for more than twenty years by the public without obstruction or interruption, and that there was no other side walk but this on the west side of Main street, and no way to get from this walk on the north of Water street to that extending south from Water street but by passing over the place of the accident. That raises the question whether the side walk is a part of the highway, or may be so, and whether it is subject to the same law and rules, whether it can be laid out, as a part of the highway, by our statute, and whether it may become a highway by dedication and acceptance, or by prescription, the same as the carriage way. Hall v. Manchester, 40 N. H. 415, is an authority directly in point, that where the wants of the community and the necessities of business require such side walks for the protection and convenience of the foot passengers, in the most frequented parts of our towns and cities, they may be laid out as a part of the highway and must then be kept in good and sufficient repair suitable for the travel passing thereon. Noyes v. Ward, 19 Conn. 250. So a highway regularly laid out may be widened by dedication and acceptance or by prescription. Where a street has been used and built up along a particular line, and the adjoining owners have acquiesced in the line so built upon, they will not be permitted to deny the effect of their acts as a dedication, and contract the lines of the street on the ground that by so doing they make them conform to the original survey and lay-out of the street. Smith v. The State, 3 Zabriskie 130. So, if the owner of the soil laid out an alley for his own convenience, but permitted the public to use and repair it, it became a public highway. Gamble v. St. Louis, 12 Missouri 617; Denning v.Roome, 6 Wend. 651; Angell on Highways, sec. 143, and authorities cited. The evidence stated in the case was competent as tending to show a dedication of this side walk' by the owner of the land to the public use. The weighing and balancing the testimony was for the jury or the court trying the facts. But the case expressly finds not only that this side walk was not in the limits of tide highway as originally laid out, but that it had never been maintained, repaired or accepted by the town or city. This raises the question whether a highway can be made public by dedication and twenty years uninterrupted use by the public, without some acceptance by the city or town to be charged with its repair. Suppose there has been such a dedication to the public, or such an acquiescence in such public use, as that the public have acquired the right — 196 — of way, as against the land owner, can the way be made public so as that the city shall be chargeable for its repair and maintenance, and for injuries received upon the same, unless the city have adopted or accepted, or in some direct way recognized it as a public highway? This question was raised in Massachusetts in Hobbs v. Lowell, 19 Pick. 405, where it was held that a highway might be established there by a dedication on the part of the owner of the soil and an assent thereto on the part of the public, and a quaere, is also raised whether the assent of the town or city is necessary to an effectual dedication, and, if necessary, in what manner it is to be given or withheld. But it did not become necessary, in the opinion of the majority of the court, to settle that question. But the matter was regulated by statute in 1846, in which it was provided that no way heretofore opened and dedicated to the public use, and not already become a public way, shall become chargeable upon any city or town of that commonwealth unless such way should be laid out and established by the city or town in the manner prescribed by the statute of that commonwealth. Statutes of Mass. 1846, ch. 203; Bowers v. Suffolk Man. Co. 4 Cush. 341. In Vermont it has been held, that, although the acceptance of the-town may be shown by their acts, as by putting the road into the rate bills of the surveyor of highways as a public road on which the highway tax is to be worked, and that the town would thus become liable to the traveller for the insufficiency of such road, yet that the road must either be opened by the selectmen according to the provisions of their law, or that they must have adopted it as a public highway before the town- will be liable for damages caused by defects therein. Blodgett v. Royalton, 14 Vt. 288, and cases cited on page 294; Folsom v. Underhill, 36 Vt. 580. In New York it is held that such ways must be accepted by the town before they become highways. Oswego v. Oswego Canal Co., 2 Selden 257 ; Badeau v. Mead, 14 Barb. 328; Clements v. West Troy, 16 Barb. 251, in which last case it is held that the only way in which a highway dedicated to the public could be accepted or adopted by the town was by laying it out according to the provisions of their statute. And in Virginia a road dedicated to the public must be accepted by the county court on its records before it can be a public road. Kelley’s Case, 8 Grattan 632. In speaking of this subject of acceptance, Angell in his work on Highways, sec. 159, says: "In the United States the cases in which this point has been directly raised are comparatively few, and the decisions have hardly been sufficiently uniform or authoritative to establish any general rule, and he adds that, though some American courts of high authority, influenced by local statutes, incline against the view that a highway may be established independently of the action of the body charged with its repair, yet in other States the courts without expressly deciding that an acceptance by mere public user is sufficient, have nevertheless specified user as one of the modes in which an acceptance might be indicated.” But in England, though it was at one time held, as in many of the — 197 — United States, that an acceptance by the public generally by mere user alone of a road, was not sufficient to charge the parish with keeping it in repair, Rex v. The Parish of St. Benedict, 4 B. & Ald. 447, Rex v. Mellor, 1 B. & Adol. 32, Rex v. Cumberworth, 3 B. & Adol. 108, yet subsequently in Rex v. Leake, 5 B. & Adol. 469, it was held that the absence of any acceptance by the parish was entirely immaterial. Parlce, J. said "the absence of repairs by the parish is indeed a strong circumstance in point of evidence to prove that the road is not a public one — the fact of repair has a contrary effect. But the conduct of the parish in acquiescing or refusing an acquiescence, is in my opinion immaterial in any other point of view. The judgment of Mr. Baron Bailey in the case of Rex v. St. Benedict was cited to the contrary, but I must say that I cannot accede to the doctrine, nor am I aware that there is any authority for it. Littledale, J. said : "The adoption by the parish, is no more than the use of it by the public. The parish are merely part of the public.” Denman, C. J. said : "I by no means think any act of adoption-necessary to make a parish liable to repair a common road. I am of opinion that if it is public the parish is of common right bound to repair it.” And in later cases, Regina v. Petrie, 30 Eng. L. & Eq. R. 207, Surrey Canal Co. v. Hall, 1 M. & G. 392, the same doctrine is held where no acceptance by the parish was proved except by common use. And it seems that the law in England is considered as settled, that no acceptance by the parish is necessary, where there is a dedication of a way to the public use, and where there has been a long and uninterrupted use of the same by the public. Let us now examine the law as it has been held in this State, bearing on this subject. Gilchrist, J., in State v. Hew Boston, 11 N. H. 407, speaks of the four methods of creating highways, in this State, as being : 1. A laying out by selectmen. 2. By the court acting through commissioners. 3. By charters by the legislature to individuals to build turnpike roads; and 4, by long use of land by the public for the purposes of a highway, or by a dedication of the land by the owners to the use of the public. And he adds that this 4th mode is recognized by numerous decisions of this court, and see authorities cited p. 409. It is said in Angell on Highways, sec. 131, that "prescription” in its more general acceptation is defined to be "a title acquired by possession, had during the time and in the manner fixed by lawthat prescription by immemorial usage can -in general only be for things which may be created by grant, for the law allows prescriptions only to supply the loss of a grant, and that inasmuch as the public cannot take by grant, prescription in its strict sense has no application to highways. It is said in Post v. Pearsall, 22 Wend. 444, by Senator Furman, that, as the law then existed in that State, (New York) and had in substance existed since the formation of the Constitution, the only way that an individual can acquire a right in real estate is by grant, or by an adverse possession of twenty years under a claim of title, in which case the law presumes a grant. And as to the public the only way in which they can at common law acquire an easement in the lands of another is — 198 — by dedication. And although Mr. Angell admits that some courts have applied the doctrine of prescription to highways, still he thinks that, more properly speaking, the use by the public in such cases unless by virtue of some statute, is ‘but a fact from which a dedication to the public may be presumed. But in this State a different rule as to prescriptions has been established. It is said in 2 Greenl. Ev. sec. 529, that, by the weight of authority as well as the preponderance of opinion, it may be stated as the general rule of American law, that an adverse exclusive and uninterrupted enjoyment for twenty years of an incorporeal hereditament affords a conclusive presumption of a grant or ’a right, as the case may be, which is to be applied as a presumptio juris et de jure, wherever by possibility a right can be acquired in any manner known to the law. This doctrine was fully adopted as the law of this State in Wallace v. Fletcher, 30 N H. 434, where it was held that a party claiming title under such possession, is not obliged to rely merely on a presumption of a grant, but he may rest on a presumption of right, or of any grant, reservation or record which may be necessary to establish his title, and that this may properly be regarded as a species of prescription, established here by a course of judicial decisions by analogy to the statute of limitations of real actions. The doctrine of Wallace v. Fletcher has been reaffirmed by this court in Bow v. Allenstown, 34 N. H. 351, 374, and in Webber v. Chapman, 42 N. H. 326, 336, where it is expressly held that the doctrine applies both to private ways and public highways. In this view it would be a proper use of terms to speak of highways by prescription as well as by dedication. And both these ways of establishing highways are evidently included by Gilchrist, J., in his 4th method of establishing highways. By the provisions of our statute, Rev. Stats, ch. 53, sec. 7, nothing short of twenty years use of a highway by the public can constitute it a public highway. No matter whether the way was dedicated to the public or held adversely, where it does not appear to have been laid out according to the provisions of the statute. Haywood v. Charlestown, 34 N. H. 23; Northumberland v. Railroad, 35 N. H. 574; Smith v. Northumberland, 36 N. H. 38. But after twenty years uninterrupted use of a highway by the public it is to be presumed that it was legally laid out, and if so then the town in which it is located is bound to keep it in repair. So, where there is no proof of dedication, it was held by the court oMassachusetts, Shaw, C. J., in Reed v. Northfield, 13 Pick. 94, that public easements as well as others may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment that they were at some anterior period laid out and established by competent authority.” See also to this point Stedman v. Southbridge, 17 Pick. 162; Folger v. Worth, 19 Pick. 108; Valentine v. Boston, 22 Pick. 75; Brownell v. Palmer, 22 Conn. 107; Commonwealth v. Belding, 13 Met. 11. In this State, before our statute requiring twenty years use, there might be highways by dedication and acceptance without regard to the — 199 — time the highway had been used. It was held that where a way was dedicated to the public and accepted by the selectmen of the town in which it was located, that was a sufficient acceptance to make it a public highway at once, although the proceedings of the selectmen were irregular, so that the laying out would have amounted to nothing as a legal laying out, aside from the dedication. Hopkins v. Crombie, 4 N. H. 523. This subject is fully discussed in State v. Atherton, 16 N. H. 203, by Parker, C. J., and the authorities cited and examined, and it is there held, that, although in case of dedication, there must be some acceptance to make it a public highway, yet it is there expressly stated that twenty years user will be conclusive evidence of such an acceptance. The same doctrine is held in Williams v. Cummington, 18 Pick. 312; Valentine v. Boston, 22 Pick. 75; Rex v. Bar, 4 Campbell 16. So in England it was held that twenty years user was conclusive evidence both of dedication and acceptance. Rex v. Leake, supra. And in State v. Atherton, supra, Parker, C. J., says there seems to be no reason why public authorities may not, by obstructing such public passage, or by public notice of dissent, prevent any charge upon the public in any case of that description, where they did not intend or desire to become chargeable. When our statute required twenty years user to 'make a highway public, even though it might have been dedicated and accepted long before that time expired, we think it was intended that such public use for that length of time should be sufficient not only to be conclusive against the land owner, but against the town or city in which such highway is located. In case of a dedication, such user is conclusive evidence of an acceptance, and in case there is no evidence of any express dedication, yet such use for that time, if uninterrupted, continuous and adverse, would be conclusive evidence of a right thus to use it as a public highway, both against the land owner and the city or town. So that upon the evidence stated the court might have found a highway at the place of the accident, either by dedication and acceptance, or by prescription, either of which would have been, sufficient. In Campton's Petition, 41 N. H. 197, it was held, that, "in analogy to other prescriptions arising from lapse of time, adverse occupation and the like, it may well be held that such user is evidence that the highway, at some former period, was duly laid out and established by competent authority. * * * At least such highway may be regarded as legally established and, like other highways, a charge upon the town for repairs, and making it liable for injuries caused by defects. It becomes indeed a public highway as much as if its existence were proved by the-record of a legal laying out, and it is so regarded by the statute.” To the same effect are Jennings v. Tisbury, 5 Gray 73; Durgin v. Lowell, 5 Allen 398; though in the latter case the way in question was not held a public highway, because, among other things, there was a sign posted up at the entrance of the way and pointing to it, on which the' words "Private Way” were printed, which was held sufficient to give — 200 — notice to all, that, when they used it, it was at their own risk, and that the city was not liable lor its repair. Upon the findings of the court in this case there must be . Judgment fur plaintiff.