22 Md. 511 | Md. | 1865
delivered the opinion of this Court.
The appellant, the defendant below, among other pleas, relied on: 1st. A common and public highway over the “•locus in quo.” 2nd. A private way appurtenant to his own land. The exceptions are taken to the granting of the third prayer of the appellee, and refusal to grant the fourth and fifth prayers of the appellant, involving the competency of the evidence to support these pleas.
The third prayer of the appellee, and fourth of the appellant, present conflicting propositions. The appellee affirms — “the mere use of a road by individuals, no matter how general or for however long a time, does not make it a public road.” This prayér, as interpreted by us, is the converse of the appellant’s fourth prayer, which substantially declares, that if the “locus in quo” had been immemorially used as a common highway, and the appellant committed the acts pomplained of, for the purpose of abating and removing an obstruction thereon, the appel-
The learned counsel for the appellee, in their briefs and argument, have earnestly contended, that the theory of their third prayer, has been repeatedly asserted in the District and Circuit to which Baltimore and Harford Counties belong, and the learned Judge helow, in so ruling, only followed the express and reiterated decisions of the learned Judges who had preceded him. With the highest respect for the learning of the distinguished Judges referred to, we can only regret that their decisions have not come to us in some authoritative form, in which we could recognize them as precedents. In the absence of any adjudicated case, in a Court of final resort in this State, we must have recourse to the text books, and decisions in the English and American reports.
A summary of the English law, on the manner of establishing highways, will be found in Woolrych on Ways, 4 Law Lib., 9. “With respect to a highway, — in the words of Hale, 0. J., — much depends upon common reputation. And if the owner of land permit the public to pass and repass over his soil without molestation or any assertion of his rights, for some time, the law will presume a dedication of the way to general use. Much discussion has arisen as to the period which must elapse before such a dedication will be presumed, and the attention of the reader will be presently directed to it. It seems therefore, that a highway may be claimed, first
The American Law on this subject, is happily condensed in section 662 of Qreenleof’s Evidence, vol. 2nd, title “Way.” “The existence of a public way is proved either by a copy of the record, or by other documentary evidence of the proper laying out by the proper authorities, pursuant to statutes, or by evidence either of immemorial usage, or of dedication of the road to public use. * * * Dedication may be presumed even against the sovereign; and in all cases; unless the state of the property was such that a dedication of the soil was impossible. The right of the public does not rest upon a grant by deed, nor upon a twenty years possession, but upon the use of the land, with the assent of the owner, for such a length of time, that the public accommodarion and private rights, might be materially affected by an interruption of the enjoyment.”
The effect in the matter of ways, which is given in many cases to a user, in establishing a public way, and a dedication of a way to public use, are so nearly identical, that they can hardly be treated of separately. Wash-burn on Easements, 125, sec. 1. The appellee’s theory excludes the idea of a right of way in the public, being established by user, dedication or prescription. In Folger vs. Worth, 19 Pick., 108, which was an action of trespass for taking and carrying away sheep, the defendant pleaded that he was a field driver, and required by law to’ take up sheep going at large, in the public highways. Shaw, C.
The appellees insist, that the same considerations which induced the Court of Appeals of Virginia to reject the doctrine of user and dedication, as applied by the English Courts to public highways, should prevail with the Courts of Maryland. In support of this argument, they urge, that since 1704 there never has been a time in Maryland, when a registry was not required to be kept of all public roads, and when the county authorities were not required to keep all public roads in repair. Whence it is inferred, that the modes of establishing and proving the existence of public roads, recognized by the Common Law, no longer exist. They refer to 1704, ch. 21; 1794, ch. 52, and 1825, ch. 219, sec. 14. A statute made in the affirmative, without any negative expressed or
From this brief analysis of some of the leading cases, most of which are collected and commented on with great perspicuity and force, in the late treatise of Prof. Waslibourne on Easements, we think the preponderance of authority is in favor of the positions that a plea of right of public way may be sustained by evidence of uninterrupted user by the public for twenty years; and the jury may infer from the circumstances attending the user, that the way was a public highway by long or immemorial usage, or by dedication. Vide p. 13. It follows from these premises, that thp Court below erred in granting the plaintiffs third prayer and rejecting the defendant’s fourth.
The appellant’s fifth prayer substantially affirms that the use of the locus in quo, by himself and those under whom he claims, for forty years, without objection on the part of the appellee, warrants the presumption of a grant of a right of way over the land to the appellant, notwithstanding that user may have been in common with other persons.
The proof of a private way must correspond with the the description, (vide 2 Greenleaf Ev., sec. 659;) but the
The presumption of a grant to the appellant must be founded on proof of an adverse, exclusive and uninterrupted enjoyment for twenty years, by him or those under whom he claims; and although this presumption may be made according to the authorities, from the character of the user itself, (Vide 8 Barbour, 153; 3 East., 297; 14 Mass., 53,) yet when it is shown by the evidence, the easement was enjoyed in common with others, the presumption in favor of the individual ceases.
The appellant’s prayer was too narrow in this respect, the facts relied on would have justified the finding of a public way, or as some of the authorities express it, a common or town way, by prescription or dedication, but not a grant to the appellant individually.
The fifth prayer was therefore properly overruled. There being error in granting the appellee’s third prayer and rejecting the appellant’s fourth, the judgment below must be reversed, with leave to the appellee to take out a procedendo.
Judgment reversed,- . with leave to the appellee to take out a procedendo.