Cole v. Sprowl, 35 Me. 161

Cole v. Sprowl

35 Me. 161 | Me. | 1852

Howard, J.

— The existence of “a road leading towards the wharf” was not directly denied ; but the particular location and boundaries of such road, whether it was contiguous to the land of the plaintiff, or so distant from it that the defendant’s land intervened; and whether the defendant and the former owner of the land had by their acts and declarations dedicated the land to the public as a way or road, were *169all matters contested at the trial, and submitted to the jury upon instructions which, in part at least, were not objected to by the defendant. We can pass upon those instructions only, which are stated in the report, and if in giving or refusing any of these there is error, then there is to be a new trial.

It is no valid objection to the plaintiff’s right to recover, that he claimed more than he proved, or more than he could legally demand, or that he presented his claim on different grounds in different counts in his declaration. Substantially, he claimed damages of the defendant for his constructing a shop upon the road, before mentioned, so near to the plaintiff’s brick store standing upon his own land, as to deprive him of the use of the road and store. There can be no doubt of his right to recover, if the facts were proved as stated in his declaration ; for the shop would constitute an invasion of his rights, causing special damages to him, not common to others, for which an action would lie ; although, as an obstruction to a public way, it might also be a public nuisance. Coke Litt. 56, a; Williams’ case, 5 Coke, 73 ; 3 Bla. Com. 219 ; Sutherland v. Jackson, 32 Maine, 80.

The instructions given embracing the construction of the conveyances under which the plaintiff claims, respecting the boundary of his land at the comer of South street, by the-road leading to the wharf, and the directions to the jury to ascertain and determine from the testimony where the road referred to had been used and established, before the conveyances, appear to have been required, and they were manifestly correct. The fact that wood was piled upon the place where the defendant’s shop has been erected, at the time when the conveyance from William Sprowl was made, did not necessarily determine, that the road had not previously been established there. The wood might have then encumbered the road temporarily, without serving to mark its course or bounds. The instructions on this point were unexceptionable.

Dedications of land by the owner for highways and pub-*170lie purposes, generally or specially, without deed or writing, are familiar to the common law of England. The doctrine is founded upon general principles that adapt it to the common law as adopted in this country. It involves the actual appropriation and use of the land, by the public, with the voluntary assent of the owner, and a concession of such of his rights as are incident and necessary to the use. It assumes the fact of dedication, and the acceptance and use by the public, for the purposes for which it was made. When a dedication has been established its continuance will be presumed until the contrary is shown. By thus appropriating his soil, the owner will be estopped to reclaim it, or revoke the dedication, to the injury of those who have acquired rights in reference to it, in good faith, depending upon its enjoyment. Rex v. Lloyd, 1 Camp. 260; Lade v. Shepherd, 2 Strange, 1004; Stafford v. Coyney, 7 Barn. & Cress. 257.

No particular ceremony is required to make a dedication, nor is any time prescribed by law, as essential to securing the enjoyment. Dedications of land may be presumed from facts and circumstances proved ; and so may the assent of the owner of the land, and the acceptance by the public. Jarvis v. Dean, 3 Bingh. 447; Rex v. Barr, 4 Camp. 16. In Cincinnati v. White, 6 Peters, 431, the doctrine of dedication was examined by Mr. Justice Thompson, and treated as not a novel doctrine in the common law in this country. Hobbs v. Lowell, 19 Pick. 405; Wright v. Tukey, 3 Cush. 290; Pearsall v. Post, 20 Wend. 111; S. C. 22 Wend. 425; Dwinel v. Barnard, 28 Maine, 564.

The instruction, “ that the owners of the land might dedicate it by their acts or declarations to the public use for a way or road,” is not objectionable. It is not essential that the act of dedication should be proved, but the fact must be established by competent evidence. The declarations, as well as the acts of the owner, may be evidence of the fact, and the best evidence of his intention to make the appropriation of his land to public use.

The first request is not stated; the second asks for instruc*171tions on an abstract proposition, not apparently applicable to the case. For, whether the “words lo, from, or by, in a deed,” are terms of exclusion or not, does not seem to have been material to the issues presented. Whether the shop was constructed on the “ road leading towards the wharf,” so as to cause the particular damages claimed, or upon the defendant’s land not covered by the road, were questions of fact, which might be resolved in the same manner, upon the evidence, whether the road was wholly or partially excluded from the premises conveyed by the deed of William Sprowl; and whether the premises were bounded by the road to a greater or less extent. The jury had received sufficient instructions to enable them to ascertain and determine the direction and location of the road, and the bounds of the premises conveyed, whether on or near to it, and the denial of this request was not erroneous.

The third request assumes that the plaintiff’s right to the road referred to, accrued to him by way of estoppel, only, and that if the road was unobstructed at a particular point, at the time of the alleged obstruction, then the action could not be maintained. But the Court could not have instructed the jury as a matter of law, that the plaintiff’s right thus accrued, or that the road did not lie contiguous to the whole length of his lot on the southern side, at the date of the conveyance of William Sprowl, under whom the parties now claim. If the road as established before that time, was then contiguous, it could not have been changed afterwards, but by competent authority. Neither the grantor nor the defendant was competent to alter the location, or to limit the estoppel by change or substitution, after the conveyance.

The fourth request was properly refused. The presiding Judge could not have stated, that the word road as used in the deed of Sprowl denoted only a right of way over his other lands, “ for the same purposes for which it was used by the grantor at the time of the conveyance,” without assuming the province of the jury. Nor could he have instructed them that the language of the deed by legal construction *172sufficiently indicated that “ a road leading towards the wharf,” was a “ wharf road,” if such a road has any peculiar properties or uses, as the request seems to indicate. The language would be alike applicable to a private way, a town way, or a public highway. The last paragraphs of this request embrace propositions already sufficiently noticed.

The fifth request is not stated in the report; and the sixth embraces points upon which sufficient instructions were given. It does not appear that the doctrines of prescription, or rights acquired by adverse possession or use, were applicable, or material, as the case was presented to the jury.

The seventh request was granted, and the jury were instructed accordingly, “ that a right to pass and repass over the defendant’s open land around the south side, and west end of the plaintiff’s brick building, as alleged in his writ, could not have been acquired by dedication.”

The response to the eighth request in the instructions given on the subject of dedication was sufficient, and is satisfactory. The ninth request is omitted in the report, and the tenth was answered by the instructions previously given.

The plaintiff could recover damages to the date of his writ only, in accordance with his claim, and the instructions given, and his exceptions must be overruled.

Judgment on the verdict.

Tenney, Rice and Appleton, J. J., concurred.