29 N.Y.S. 807 | N.Y. Sup. Ct. | 1894
This action was for malicious prosecution. The defendants were commissioners of highways of the town of Onondaga, N. Y. It appeared by the undisputed evidence in the case that in the village of Onondaga Valley, a hamlet in the town of Onondaga, a strip of land about 60 rods in length and 6 rods in width had been used uninterruptedly by the public for street and other purposes for a period of much more than 20 years. The plaintiff was the owner and in possession of a lot which fronted upon this land. Some time in the summer or fall of the year 1892, he inclosed a portion of it in front of his premises, by surrounding it with a pipe and post fence, by which the public was excluded therefrom and deprived of its use for the purposes for which it had formerly been used. The land inclosed had been used for more than 20 years as a road or passageway for-travelers on foot, and sometimes teams were driven upon and across it. A sidewalk passed over it, and was in general use by persons going along that side of the street. The manifest object of the plaintiff in erecting this fence was to procure the use of a portion of this land to which he had no right, and to deprive the public of its use for any purpose, and especially as a street or highway. That he had no title to the premises thus inclosed, except such as was subject to the public easement, is obvious from the proof in this case. After he had thus inclosed this land, and on or about November 26, 1892, the defendants, as commissioners of highways of the town of Onondaga, served upon him a written notice requiring him forthwith to remove his fence and a sidewalk he had built in front of the land so inclosed. The plaintiff did not comply with the requirements of this notice, but permitted the fence and walk to remain there until December 5, 1892.
On the trial, after the evidence was closed, the court granted a nonsuit. The grounds upon which the motion was made, briefly stated, were: “That the evidence failed to show a cause of action; that the plaintiff failed to show any right or title in himself to the premises in dispute, or any right to build a fence or walk thereon; that he failed to show want of probable cause for making such complaint and arrest, and that there was no evidence of malice in making the complaint. The correctness of the court’s ruling in non-suiting the plaintiff is challenged by him, and presents the most important and substantially the only question involved in this case. That the strip of land inclosed by him had been dedicated to* the use of the public, and accepted for highway purposes among others, there can, we think, be no doubt. Therefore, in examining the question in this case, it must be assumed that the land in question had been dedicated and accepted for the purposes for which it had been used by the public for more than 20 years, and that one of the purposes was the use of it as a sidewalk by persons traveling along that side of the highway, and for driving upon when desired.