Buchanan v. Curtis

25 Wis. 99 | Wis. | 1869

DixoN, C. J.

This court is divided in opinion upon the question whether an acceptance by the officers of the town is necessary to constitute a highway by dedication. My brethren are of opinion that such acceptance is not necessary, but that travel by the public, to such an extent and for such a length of time as to show that the public convenience and accommodation require the road, is sufficient for that purpose. In support of this proposition they cite and rely upon the following authorities: Hanson v. Taylor, 23 Wis. 547 ; 21 N. Y. 474; 23 id. 64; 26 Barb. 634; 23 id. 123; 5 Bing. 477; [13 E. C. L. 45]; 36 Pa. St. 99; 20 id. 331; 46 N. H. 192; 19 Conn. 250; 29 id. 162. On the other hand, I hold that acceptance by the proper officers of the town is necessary, and- that mere travel or user by the public will not suffice for the purpose. I refer to my opinion in Hanson v. Taylor, and the authorities there cited, which, for convenience of reference, I here repeat: State of Wisconsin v. Joyce, 19 Wis. 90 ; 18 id. 118, 129 ; 21 id. 609; 19 Johns. 186; 6 N. Y. 257; 14 Barb. 228; 16 id. 251; 37 id. 50; 36 Vt. 587; 27 id. 294; 13 id. 224; 14 id. 288; 19 Pick. 405; 3 Cush. 290; 4 id. 332; 8 Gratt. 632; 2 Carter (Ind.) 147; 33 Miss. 289; 29 Conn. 168; 1 Beasley (N. J.) 299 ; 2 R. I. 172. And if mere user by the public is, under any circumstances, to be regarded as an acceptance or evidence of an acceptance so as to bind the town, which I do not admit to be law in this state, I should still differ from my brethren as to the length of time of user required. I think, to be sufficient, it must be long user — twenty years at the common law, and ten years under our statute. R. S. ch. 19, § 85. And this I understand to have been expressly decided in several of the cases above referred to, while some others, it is freely admitted, seem to hold a different rule. I refer particularly to 46 N. H. 192, and authorities there cited, as showing the common-law rule upon this point; and also the rule which should be held under our statute in case the doctrine of acceptance by user is to prevail in this state. And I refer likewise to 1 Beasley, 299, upon the same point.

These remarks sufficiently dispose of all questions arising upon the instructions given, and those requested but not given. They show, that, in the opinion of the majority of this court, there was no error in either respect, while I am of the very opposite opinion.

But this case presents another question, upon which there is no division of opinion in this court. The court below refused to allow the declarations of the plaintiff, made after the way was opened, and after the alleged dedication, to go to the jury as evidence of the plaintiff’s intention. Proof of such declaration made at the time of the alleged dedication only, was admitted. This, we think, was error. It was expressly so ruled in Proctor v. Town of Lewiston (25 Ill. 153); and Irwin v. Dixion (9 How. [U. S.], 10), is a very strong case to the same effect. In the latter case, the right of public way, claimed after a user of nearly fifty years by the public, was defeated by evidence of such declarations. Such declarations are a part of the res gestee. Both the acts and declarations of the owner explanatory of his intention in permitting the public to use his land may be shown; and if it appears that there was no intention to dedicate, then the public acquires no title by the user.

It follows that the judgment must be reversed, and a new trial awarded.

By the Court. — So ordered.