Judgment of the Court
KING J.-The action is for encumbering or obstructing a public highway which adjoins the plaintifl's, property and preventing access to the main road. It was sought to establish the existence of the public highway by dedication.
This involves two things; (1) an intention on the part of the owner of the land to dedicate, and (2) an acceptance by the public such road as a highway.
This is evidenced by user. As to the intention of the owner to dedicate, the plaintiff (the present respondent), relies upon a lease from the Connell heirs to Craig, through whom the defendants claim.
Immediately following the description of the land, which made no reference to a road, and in which there was no reservation of a road, there was a diagram showing a public road in the place where the plaintiff claims it to have been and there was a covenant by the lessees, their, etc., Assuming that, upon the construction of the lease, there must be taken to have been an intention on the part of the lessors to dedicate the way as shown in the diagram, still there remains the question of acceptance by the public.
There was evidence on the part of the plaintiff that there was a public user of a road where it is shown by the diagram, but the defendants had an equally large body of testimony showing that the user was where they claim that the road was, viz., nearer the bank of the creek.
The jury have adopted the defendants' view, and according to their findings there was no way used by the public except where the defendants say it was.
The learned trial judge directed a verdict for the plaintiff, notwithstanding the findings, upon his construction of the lease, and the Supreme Court of New
Brunswick has sustained his judgment. This conclusion, however, takes no account of the necessity to establish a public use of the alleged way. The company has entirely failed to get a finding in its favour upon the point of user, and has therefore failed in making out the case it set out to make.
The judgment below must therefore be reversed, and, as all the facts were fully gone into, it would best meet the justice of the case to direct that judgment should be entered for the defendants.
Appeal allowed with costs.