Cleveland v. Cleveland — 12 Wend. 172

Majority

p. 172

Cleveland vs. Cleveland.

Headnote

Lands adjoining a public highway, remaining unenclosed, are considered as dedicated to the publie use, and no action will lie by the owner against any person travelling over it.

Error from the Washington common pleas. D. R. Cleveland sued A. Cleveland in a justice’s court for trespass, in walking over his lands. The defendant passed from the beaten track of a public highway over a fence into his own lands, and in doing so passed over a strip of land belonging to the plaintiff, of from six to ten feet in width, lying between the road and the fence, allowing the road to be only two rods wide. The beaten track is two feet west of the centre of the road which is now travelled as it was when laid out. The fence over which the defendant passed is to the east of the road. The strip of land has remained unenclosed since the road was laid out. The justice rendered judgment in favor of the plaintiff for six cents damages and $2,03 costs, which judgment was reversed by the Washington common pleas. The plaintiff sued out a writ of error.

Allen & Blair, for the plaintiff in error.

Billings & Willard, for the defendant in error.

By the Court,

There is no evidence showing that the road referred to in the return, and which is a public road, was originally laid out only two rods wide. The statute

p. 173

2 R. L. 277, § 22, see also Act of 1801, Webst. ed. 1 Vol. 591, § 17, required roads to be laid out four rods wide. The revised statutes now require public l’oads to be not less than three rods wide. This road may not have been more than two rods , , , , , . . . .. . . under some old law, or by prescription; but if so, it lay upon the plaintiff to prove the fact, as it would be an exception to public roads generally. If it is to be deemed four rods wide) then there is no doubt it extends to the line of the defendant’s farm ; and even if it had been proved to have been laid out but two rods wide, and a few feet belonging to the plaintiff lay between the road and the fence, as it has always been left in common with the road, and thereby apparently devoted to the public use, any person would be justified in using it in that way. The fair inference to be drawn from its situation, thus acquiesced in by the owner, is, that it has been abandoned to the public; any other construction would convert it into a claptrap to catch trespassers.

Besides, even assuming the road to be but two rods wide there is some doubt upon the evidence whether it did not extend to the defendant’s line. The court below had a right to determine that question, and their decision is final. 10 Wendell, 411.

Judgment affirmed.