28 N.Y.S. 858 | N.Y. Sup. Ct. | 1894
This is an appeal from a judgment dismissing the complaint of the plaintiff after a trial at the special term of this court. The action was brought to determine the character of the roadway described in the complaint, and to procure a judgment which should declare it to be a private, and not a public, way, and to perpetually restrain the defendants, as commissioners of highways, from working or repairing the road, or interfering with it in any manner as- a public highway. The complaint alleged that the way in question was, and continues to be, a private roadway, and has at all times been used as such by the owners of the property through which it passes. This way runs through a vast tract of mountainous woodland of over 8,000 acres, over which there are about 50 miles of the same sort of mountain roads. There is not upon it a single human habitation. There is neither roadbed nor anything to distinguish it from the other paths which cross the
“All we have here is that the road was used by the public generally. But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but must be kept in repair, or taken in charge and adopted by the public authorities. We think all this is implied in the words ‘used as public highways.’ * * * A private way opened by. the owners of land through which it passes for their own use does not become a public highway merely because the public are also permitted for many years to travel over it.”
Judge Pratt, in delivering the opinion in the same case when it was in our court, said:
“It is elementary law that to establish an easement in lands by use or prescription the occupation and use of the land must be plainly for the purpose in view under an unequivocal claim, and, if not actually adverse, at least under circumstances leaving the owner at all times free to resist the invasion. The coincidental use by the public of a private way which the owners maintain primarily for their own convenience is permissive or by license, and lacks the essential characteristics of the use required to work a presumption of grant or title in the public for a public highway. The authorities in support of these propositions are too numerous for citation.”
In the case of Lewis v. Railroad Co., 123 N. Y. 496, 503, 26 N. E. 357, the court of appeals unanimously affirmed .the same doctrine, and in respect to it used the following language:
“We have recently determined what facts constitute a public highway, within the meaning of the statute relating to user. Speir v. New Utrecht, 121
Moreover, the character of the land over which the way in question passes forbids the indulgence of any presumption of a right by prescription, and prevents the acquisition of any right by the public by mere use of the road. In Angel on Highways (section 151) it is laid down-as elementary law that where the road, which had been in existence for more than 50 years, had originally passed through woodland, the mere use would be insufficient to constitute it a public road. The ground for the distinction is that, where the land is inclosed and cultivated, the mere use is an invasion and a trespass; but where it is woodland those who travel it commit no trespass until after notice to desist, and subject the owner to no loss or inconvenience. To prohibit such use would be considered churlish, and would be ineffective unless constant watch were kept of the premises. In the case of Hutto v. Tindall, 6 Rich. Law, 396, the doctrine was laid down by the court of appeals of the state of South Carolina, as follows:
“As the presumption, of a grant of way by the owner of the land arises from the exercise of a privilege adverse to his right of property, and from his acquiescence in the exercise of the privilege, the presumption will not be supported if the use of the way does not infringe on his rights, nor conflict with his enjoyment of his property. A distinction must therefore be observed between the claims of a way through inclosed and cultivated land and way over uninclosed woodland. * * * Merely passing over uncultivated and uninclosed forests, which is common to every one, cannot, by any lapse of time, give a right to any individual. The presumption of a grant of way should be restrained by rules of evidence which may prevent its insidious operation.” i
The facts of this case bring it fairly within the law so announced. Such is the well-established doctrine, and a full and careful examination of this case conducts us to the conclusion that the road in question never was a public highway, that the judgment should be reversed, and a new trial granted, with costs to abide the event.