Johnson City v. Wolfe

Beard, J. This is an action of trespass brought by the defendants in error to recover damages for injuries sustained by Mrs. Wolfe in the tearing down of her fence and the destruction of the shrubbery- on her lot. There was a verdict 'for $250. — 279 — The record shows that the wrong complained of was done by a policeman of plaintiff in error, and it is insisted that this was a personal tort of the wrongdoer, for which the municipality is not liable. The rule of law here invoked is well settled. Connelly v. Nashville. 100 Tenn., 262; Irvine v. Chattanooga, 101 Tenn., 291. But, the difficulty which plaintiff in error encounters is, that while the testimony is that the fence was torn down and thrown upon the shrubbery growing on the lot of Mrs. Wolfe by the policeman, yet there is enough in the statement of the witnesses, as found in the bill of exceptions, to warrant the jury in making the inference that this action was done with the sanction of the authorities of the corporation. This being so, the plaintiff in error is not in a position to avail itself of this rule of law, especially as evidently it is invoked for the first time in this Court. It is proper to add that the act of the Recorder of this ' corporation in causing the husband of Mrs. Wolfe to be arrested and amercing him with a fine for setting this fence back in the place from which it had been torn by the police officer, could not of itself be held to ratify the alleged wrongful act so as to make it the act of the municipality. Pesterfield v. Vickers, 3 Cold., 205. The real ground upon which this case was defended in the Court below is that the fence, when taken down, was standing on a strip of — 280 — ground wbicb had been, by implication, dedicated by Mrs. Wolfe to the public as a part of the street, and which had been accepted and improved as such by the corporation, and which for many years was used by the public as a portion of the street. If such are the facts, the law is that this dedication was irrevocable by the owner (Rich v. City of Rock Island, 5 Biss., 95), and that the town authorities had a right to remove the fence as an obstruction. Elliott on R. & S., 491, 492; Beach on Pub. Oorp., Sec. 1235. The facts bearing upon dedication, as disclosed in the record, are as follows: The lot, of which the strip in controversy formed a part, fronted on Maple Street at the point of its intersection with Spring Street, in .Johnson City. Several years before the wrong complained of, an effort was made by many lot owners on Maple Street, to have it widened by a donation of a strip on 'each side of ten feet. All these owners on the side on which Mrs, Wolfe’s property lies agreed to this except herself. The' objection on her part defeated this original plan, but about eight years or more before the institution of this suit Mr. Wolfe did move bach the fence which stood along the front of his wife’s lot some four and one-half feet. At the time of - this removal the fence was an ordinary wooded or pailing one. Afterwards there was erected by him in its place an iron fence of a valuable and permanent char — 281 — acter. When this was done, other lot owners on Maple Street aligned on the fence of the Wolfe’s, and the municipal authorities, assuming, as is clearly inferable from the evidence, that it was the intention of the parties to dedicate this open strip to the public, graded it up to the 'line of the fence and made gutters, and treated it as a part of the street. Mot only that, hut stepping stones on a line with this strip, in front of the Wolfe property and extending across Spring Street, were laid down, and for eight years the public, without interruption, had used the strip as a part of the street, and also the crossing thus connected with it. This use was for the first time interfered with when the defendants moved their fence out, and once more took within its inclosure the strip in controversy. With regard to the original act of setting the fence hack so as to throw out this strip, Mrs. Wolfe says it was done by her husband without her consent, but she adds that she did not object to the public using it as a part of the street or sidewalk, and that she knew of its use during all the years it was thus outside, and was also aware that the authorities of the town had caused to be constructed the crossing already referred to and of its extension from this strip. Mr. Wolfe corroborates this testimony of his wife. On the subject of implied dedication the law i's well settled that, so far as the owner of the — 282 — property is concerned, it is a question of intention, not an intent which is kept concealed in the mind, but that which is manifest in the visible conduct and open acts of the owner. Elliott on Roads and Streets, 92. ■ The • true rule is dearly stated by Mr. Elliott on page 92 of the work just referred to, in the following terms: “The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his ' intent. If the acts- are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation.” And we think while it is true that in the case of a married woman a stronger case must be made out than ■ if she was discovert to induce the Court to ' apply the rule of implied dedication to her, yet when a case is made in favor of the public, the doctrine of estoppel in pais may be invoked against her. In such a case she is held bound, because it would be a fraud upon the rights of others to permit her to gainsay- what she ■ had done and deprive others of rights they have acquired upon the faith of what her acts and declarations implied. Idem., p. 108. This rule of estoppel in pais has been applied by this Court, in cases of private rights, to femes' covert. Galbraith v. Lunsford, 87 Tenn., 89; Pilcher — 283 — v. Smith, 2 Head, 208; Howell v. Hale, 5 Lea, 405. And while ordinarily an easement that does not rest npon express grant can only he created after an adverse use of twenty years, yet in the matter of streets and highways a much less period of use by the public has been held sufficient. In the case of Rugby v. Merriweather, 11 East, 395, a period of eight years was held quite a sufficient time for presuming a dedication of the way to the public, and in a great case which Lord Kenyon said was much contested, six years was held sufficient. To the same effect, are the cases of Regina v. Patrie, 30 Eng. Com. L. & Eq, 207, and Jarvis v. Dean, 3 Bing., 447. It is true that there are other English cases and some American cases holding that a much longer period .is necessary to create the easement, yet the weight of authority, at least in this country, since the leading case of the City of Cincinnati v. The Lessee of White, decided by the Supreme Court of the United States in 1832, and reported in 6 Pet., 431, is that the right of the public to the street or highway dedicated by implication does not rest upon the length of time it is used. In formulating the propositions settled by this case in Vol. 2, Sec. 631, of his work on Municipal Corporations, Judge Dillon states the fifth and last of these propositions in these words: “Ho specific length of time is essential to constitute a valid dedication; all that is required is the assent of — 284 — the OAvner of the soil to the public use and the actual enjoyment by the public for such a length of time that the public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment.” In view of this rule and as applying to the issue in this case the plaintiff was entitled to a submission to the jury of the following special request, which Avas declined by the trial Judge, to wit: “If the fence of Mrs. .Wolfe was set back on a line Avith other fences by her husband, and she allowed it to remain set back for eight years, and she allowed the strip of ground in question to be used by the public as a part of the street or sidewalk without objection on her part, said acquiescence by her would amount to a dedication of said strip of land to the public use; and this would be true although she did not authorize or consent to the setting back of the fence in the outset.” Eor error in declining to give this request the judgment must be reversed.