270 F. 5 | 8th Cir. | 1920
(after stating the facts as .above).
*7 “No person or persons, nor tlieir children or heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, against any one having adverse possession of the same continuously in good faith, under color of title, but within ten years next after his, her or their right to commence, have or maintain such suit shall have come, fallen or accrued, and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments so held, shall be commenced within ten years next after the cause of action therefor has accrued.”
Plaintiff in error does not contend that itjs not the general rule, applicable in New Mexico, that a street or highway may be established by prescriptive use, where the general public under a claim of right and not by mere permission of the owner, have used some well-defined way without interruption, but contends that it must also be shown that the municipality accepted or recognized the highway by. some act of its officers. Although there is some division in the cases, the better rule and the one established by the weight of authority is that the continuous and adverse use by the public .for the requisite time is sufficient to show acceptance of the highway. Bassett v. Inhabitants of Harwich, 180 Mass. 585, 62 N. E. 974; Gallagher v. City of St. Paul (C. C.) 28 Fed. 305; Phelps v. City, 23 Minn. 276; Green v. Canaan, 29 Conn. 157; Jones on Easements, § 459.
Upon the record, we think the evidence was sufficient for the jury to find the existence of a public street at the place of the accident, and the judgment will be affirmed.