Herrick v. Town of Geneva

Winslow, J. It is admitted that the town board could not legally discontinue a territorial road. R. S. 1858, ch. 19, sec. 90. Therefore, the sole question is whether the portion of highway in question has been abandoned under the provisions of ch. 253, Laws of 1882 (S. & B. Ann. Stats, sec. 1294a). This section provides as follows: “ Any highway in this state which shall have been or may hereafter be entirely abandoned as a route of travel, and on which no highway tax has been expended for five years, shall be considered legally discontinued, and the land of said highway shall revert to the owners of the land through which the same passed.” Doubtless, this section was intended to have some effect. It was unquestionably supposed that there would be cases to which it might apply with justice, and put at rest long dormant claims of the public to highways which had become practically useless; but, if it should be held not to apply to the present case, we can hardly conceive of any case to which it could ever apply. Here is a case where a country road, more than half a mile in length, is in form vacated by the town authorities, and another highway laid out, which accommodates the travel. It is true that the town board had no power to vacate it, but this fact makes no difference with the significance of their action as bearing on the subject of abandonment. It is just as effective an indication that the 1 authorities in charge of the highways of the town have de [117] termined that this way is of no further use. Following this declaration by the town authorities, the property owners fence up the road, and cultivate it for twenty-seven years. During this time no traveler uses it or attempts to use it; no claim is made by the town, by the public, or by any passenger that it is a highway; no work is done on it; no money expended on it. ' Do not these facts constitute an entire abandonment as a route of travel? It seems to us quite certain that they do. Certainly, the town authorities, by their formal vacation, announced the voluntary abandonment of it by the town; by their silence and failure to work or spend money upon it, they reiterated the abandonment year by year; and the public acquiesced without objection for twenty-seven years, nine years of which time being after the passage of ch. 253 aforesaid. It must be held to have been entirely abandoned. The discontinuance or vacation of highways by the acts of public authorities is the subject of an extensive note to Moffltt v. Brainard (Iowa) in 26 L. it. A. 821. — Rep. It is argued that an “ entire highway ” must be abandoned; that is, the entire Delavan and Burlington road. We cannot subscribe to this doctrine. Such a holding would practically nullify the statute. It was said in Maire v. Kruse, 85 Wis. 302, that the statute does not mean any part of a highway, however small, but that it must mean at least enough of any public road or thoroughfare to be called in ordinary parlance a “ highway.” Perhaps no more exact definition than this can be laid down in advance. Certainly, we think a country road more than .half a mile in length, connecting two other highways, may itself properly be called a “ highway,” within the meaning of this statute. • By the Oourt.— Judgment affirmed.