29 Iowa 73 | Iowa | 1870
Lead Opinion
—The questions, both of law and fact, arising in this case, relate to the character of the Sixth street extension; whether in contemplation of law it was, at the time of the injury complained of, a highway. It is not denied, that, if it in fact was a highway, defendant is liable in this action, and that the verdict and judgment should be sustained. To these questions alone is our attention directed by the argument of the counsel of the parties, and no others will be considered.
There is no evidence contained in the record tending to show that the street extension in question had been established as a highway under authority of legislative enactment— that it was a highway under any statutory law of the state. If a highway at all, it is such by dedication of the owner of the soil and acceptance by the city, and this is the main point to be determined in the case.
In other states a period of time, shorter than that required to limit an action to recover lands, during which the use by the public has continued, has been held sufficient to raise a presumption of dedication. See authorities cited in Angell on Highways, § 143, et seq., and 2 Smith’s Leading Cases, Hare & Wallace’s notes, 180, et seq.
III. Use by the public of a highway during a time of
Acts of the owner of the land, implying his assent to its use as a highway and indicating an animus dedicandi, when accompanied by user on the part of the public, without regard to the time during which they way has been used, are sufficient to authorize an inference of prior dedication. Marcy v. Taylor, 19 Ill. 634.
Thus, where the land owner built a street upon his premises which was used as a highway, it was held to amount to a dedication. Lade v. Shepard, 2 Strange, 1004.
Selling lots abutting upon land used as a way ; describing highways as such in a map or plot by the land owner; standing by and seeing ways improved or made, and other like acts which induce the public to believe that the land is set apart as a highway, — will raise a presumption of dedication. See authorities cited in Angel on Highways, § 143, et seq., also the following cases, illustrating the application of this doctrine. Connor v. President and Trustees of New Albany, 1 Blackford, 43; Gwynn v. Homan, 15 Ind., 201; Williams v. Wiley, 16 id. 362; State v. Atherton, 16 N. H. 203; Lownsdale v. Portland, 1 Oregon, 397; Harding v. Jasper, 14 Cal., 642.
It is probably the settled doctrine in England, that no formal acceptance other than public use is necessary, in order to make the dedication of a highway effectual. See Angel on Highways, § 158. While this rule is not uniformly recognized in this country, yet it is believed that the weight and prevailing current of authorities support it. Curtis v. Hoyt, 19 Conn. 154, 169; Baker v. Clark, 4 N. H. 380; State v. Nudd, 3 Foster, 327; Cole v. Sproul, 35 Me. 161; The people v. Beaubien, 2 Doug. 256, 286; State v. Cutten, 3 Ut. 530; Morley v. Taylor, 19 Ill. 634; Green v. Canaan, 29 Conn. 157; Boyce v. The State, 16 Ind. 451; Norse v. Ranno, 32 Vt. 600; Holdam v. Cold Spring, 21 N. Y. 474; Gwynn v. Homan, 15 Ind. 201; Leech v. Waugh, 24 Ill. 228; Connehan v. Ford, 9 Wis. 240; Daniels v. The People, 21 Ill. 439; Holdam v. Trustees of Cold Spring, 23 Barb. 103; Jennings v. Inhabitants of Tisbury, 5 Gray, 73; Bissell v. N. Y. Central R. R., 26 Barb. 630; Hays v. The State, 8 Ind. 425; The State v. Hill, 10 Ind. 219; Smith v. The State, 3 Zab. 130; State v. Sarton, 2 Strob. 60; State v. Atherton, 16 N. H. 202.
It has been ruled in Indiana, that use and repairs of a road, by the public, continuously for ten years or less, is sufficient to authorize a jury to infer dedication by the owner of the land over which the road passed for the purpose of a highway, although a statute of the state declares that all public roads which have been or may be used as such for twenty years or more, shall be deemed public highways. The State v. Hill, 10 Ind. 219.
Work done by proper authority to repair roads used as highways, when no evidence of their establishment under statute, nor other evidence of acceptance is shown, has repeatedly been held sufficient to authorize the inference of acceptance, by the constituted public authorities, of ways dedicated to public use. Marcy v. Taylor, 19 Ill. 634; Folsom v. Underhill, 36 Vt. 580; State v. Atherton, 16 N. H. 203; People v. Jones, 6 Mich. 176; Alvord v. Ashley, 17 Ill. 363; The Commonwealth v. Belding, 13 Met. 10.
The convenience to the public of a highway in question, coupled with use by the public, when dedication is sufficiently shown, may be proved in order to base a presumption of acceptance. Green v. Canaan, 29 Conn. 157; Guthrie v. New Haven, 31 id. 308.
The several rules, supported by the authorities
, User by the public for ten years, and in one case for a shorter period, has been held in this state sufficient upon which to base a presumption of dedication. See Keyes Crawford v. Tait, and Onstott v. Murray, supra. Upon evidence of this character land owners are deprived of the use of their lands, and fines and penalties are enforced in criminal proceedings, qui tam and other actions, in cases without number, to be found in all the books, both English and American. But to support a dedication, acceptance by the public or public authorities of the lands dedicated must, in all cases be shown, or proper evidence must be given from which it can be inferred. In such cases, acceptance, it is uniformly held, may be proved in the manner indicated in the authorities above cited, viz., by user, by repairs, etc. Now it appears to be unreasonable and contrary to the plainest principles of justice, that acceptance may be thus proved and inferred against the land owner, or those who are charged with the violation of law by obstructing a public way, and yet that the same evidence will be insufficient to prove the like fact when the public authorities are charged with neglect of duty or violation of law touching the highway, whereby the private citizen suffers loss. This would be establishing one kind of law for the citizen and another for municipa! and other quasi corporations and public officers; and the recognition of different rules of evidence in cases where the same facts and same issues are presented for
It has been suggested as an answer to this argument, that in cases against the citizen for obstructing the highway, or against the land owner who denies the dedication, acceptance is shown by the fact of the commencement of legal proceeding, prosecution, or the finding of the indictment; that is, whatever act is done or proceeding instituted to sustain the highway, as against the citizen, amounts to an acceptance by the public or the proper public officers. As a matter of fact, in no case can this view be sustained. The informer who institutes prosecutions, the grand jury that presents the indictment, or the citizen who brings a private action against one who obstructs a road, in no sense are clothed with authority to accept a dedication in behalf of the public. Besides, if this were admitted, such acceptance must, of necessity, be after the act causing the obstruction, and as acceptance is necessary to affectuate dedication, it follows, that at the time the act was done for which proceedings or prosecutions are instituted no dedication in fact existed.
An argument, against the conclusion we have adopted, is based upon the ground of hardship to the counties and cities of the state if they are held liable to keep in repair highways not laid out and established under their authority, or not recognized by the formal act' of the proper officers or authorities of these corporations, expressed in a manner indicating the formal acceptance of the high
It is doubtless within the power of the counties and cities to vacate, or by proper action to refuse to accept, highways established by dedication, so that it is impossible for land owners to force upon the public roads not necessary for the public convenience. Such as are necessary the public authorities ought to keep in repair.
It will be noted that the question in this case, whether the highway as dedicated was accepted by the public, was
Applying these doctrines, which are well supported both upon precedent and reason, we have no difficulty in sustaining the rulings and judgment of the court below. The law embodied in the instructions to the jury fully accords with the doctrines above announced. The instructions asked by defendant and refused, were either in conflict therewith or substantially given in another form, upon the courts own motion.
Y. Under section 23 of the charter of Dubuque, it is provided that no addition to the city shall be lawful unless it be submitted to the city counsel, who have exclusive authority to provide for and regulate the width of streets and alleys therein. An objection is based upon this provision, to the effect, that upon the land over which the street in question passes the city council possesses exclusive authority to establish streets. But the defendant has failed to show that the street is within an addition, which is certainly necessary to bring it within the provision, even should we hold that it possesses the force and effect claimed for it, which by no means appears to us. Besides, we gather from the record that the island and slough over which the city extends is within the original limits of the city, and that an amendment of the charter contemplated the construction of the street over the same precisely in the manner the record describes the Sixth street extension. Acts 5th General Assembly, ch. 17, ^ 1.
We think differently. It is the duty of the city, not only to keep the street in repair, but to erect barriers and protections to prevent travelers from passing, without its limits but in its general direction, into dangers and obstructions. The city cannot be permitted to suffer a street to terminate in a kind of a cul de sac leading to
The court by the instruction very properly left the'jury to determine whether the defective bridge was so near the public highway as to be dangerous to persons traveling thereon. See Davis v. Hill, 41 N. H., 329, and authorities there cited.
It is the opinion of a majority of the court that no error appears in the record before us. The judgment of' the circuit court is therefore
Affirmed.
Dissenting Opinion
(dissenting). — This suit against the city of Dubuque is for the value of a horse lost by plaintiff in consequence of a defect in a bridge alleged to be in and part of a highway which the city was bound to keep in repair.
It is denied by the city that it was bound to repair the bridge, and the way leading to it, where the injury occurred.
It did not occur on a street laid out and constructed by the city, but in a highway made by dedication, and no act by the city authorities in relation to the alleged highway is shown, except slight repairs made to the bridge and embankment leading to it after the injury to plaintiff’s horse.
The question is, Does the obligation devolve upon the municipal authorities charged with the repair of highways, to repair a highway that has become such by dedication, from and after the time dedication is made, without any act of acceptance on their part ? Or, to state the proposition in another form, Are municipalities equally bound to repair highways created by dedication as they are to repair the highways laid out in accordance with the statute law, which have been worked and opened by the authorities for public use ?
The owner of the land over which the highway is laid may fence it and throw it open to the public; but until the authorities invite the public to use it, by making it passable, those who use it use it at their peril.
Is it consistent that a greater obligation should rest upon the public authorities when a highway is made by dedication ?
In 4 Barnwell & Alderson, 448, this question first appears in the English reports, and Justice Bailey says : “ I do not accede to the doctrine, that because there is a dedication of the road by the owner of the soil, and the public use it, the parish is therefore bound to repair. I think there ought to be, in addition to this, evidence of an acquiescence by the parish in the dedication.
“ It would be most unjust, if, by the public use of what was not at first a public road, the burthen of repairing it could be removed from the persons to whom the use of it was at first confined, and cast upon the parish. Admitting, therefore, that in this case there was a dedication to the public, and that the road was found to be a public benefit, I think that, in consequence of the want of some acquiescence or act of adoption by the parish, they are not liable to the repair of the road.”
Afterward this rule was changed, and it was held by
The difference in the condition of England and our condition makes the earlier English rule more applicable to our circumstances, and it has received the endorsement of the courts of several of the states, and has been embodied in the legislation of Massachusetts and Rhode Island.
The law, as held by the majority of the court, points out no way by which the knowledge that a highway has been made by dedication can be brought home to the municipal authorities,' and it devolves upon the counties, towns and cities of Iowa the repair of highways of the existence of which they have no means of knowledge; and in this mode the responsibility is cast upon them of repairing roads which they would refuse to establish if applied to make them highways by the mode pointed out by the code, and which they have no power to vacate.
The rule that a dedication per se devolves upon the public the repair of roads so made, would make the municipal authorities liable forthwith for the opening and maintenance of the streets designated on every town plat, recorded according to law ; and there is not a city in Iowa equal to such a burden. ■
“To constitute a highway by dedication, by which the town is bound to repair, there must be dedication of the land by the owner, and an acceptance of the dedication by the town, otherwise it would be in the power of an individual to impose upon a town a liability to make and keep in repair a road nolens volens.” Hyde, Admr., v. Jamaica, 27 Vt. 454.
. “To make a town liable for the repair of a highway made by dedication, it must have been adopted by the town. And adoption does not mean a general use by
In Oswego v. The Oswego Canal Company, 2 Seld. 263, Ruggles, Ch. J., says : “any individual may lay out thoroughfare through his own land. But such dedication does not impose upon the towns in which the lands lie the duty of improving or of keeping in repair as a public highway the lands so dedicated.” In the same-case, Edmunds, J.: “It requires something more than dedication to create the privileges and duties belonging to a public highway.”
In Holdam v. Cold Spring, 23 Barb. 103, it is held without qualification that a dedication and an acceptance by the most unqualified use of a highway does not make it a highway in its most extended signification.
This is the law of New York.
In The State v. The Town of Richmond, 1 R. I. 49, it was held that a resolution which was passed adopting the road was insufficient. In the case of a dedication in • this state of a highway, it is provided by statute that “ no town shall be liable to repair such highway until the town council thereof shall decree and order the same to be repaired at the expense of such town.”
In Green v. The Town of Canaan, 29 Conn., the court was divided in opinion; Storks and Hinman, JJ., holding with the majority of this court, and Elllworth and Sandeord, JJ., holding that a dedication did not devolve without an act of acceptance on the part of the authorities, upon the town the responsibility of repairs and a liability for neglect to repair.
I add, adopting still the language of Ellsworth, J.: “ If my brethren are right in their theory, no city or town is safe without watching all private roads, however made, to learn how much public travel there is on them, and whether they have been abandoned to the public — an inquiry to be conducted at their own risk.”
He adds : “We hold acceptance is necessary, and until it is made by the city or town, or by some act, of its officials having charge of the subject, the city cannot be liable for its defects.”
In Guthrie v. The Town of New Haven, 31 Conn. 308, the doctrine held by the majority of this court is sanctioned on the authority of Green v. Ganaan, in which the court were divided, and in which was delivered the dissenting opinion of Ellsworth, J., from which I have ■before quoted at length.
In Jennings v. The Inhabitants of Tisbury, 5 Gray, 73, a distinction is made between a. road by dedication and a
In Todd v. Rome, 2 Greenl. 51, Mullen, Ch. J., rules that twenty years’ use of a highway imposes upon the town the duty to keep in repair the highway, and he deduces the obligation to repair from the right to use.
In the following cases,' referred to in the opinion of the majority of the court, the question of the liability of a town or city to repair a road made by dedication is not in issue, and the courts intimate no opinion upon it. Baker v. Clark, 4 N. H. 380; State v. Nudd, 3 Fost. 327; Cole v. Sprowl, 35 Me. 161; People v. Beaubien, 2 Doug. 256; Marcy v. Taylor, 19 Ill. 634; Boyer v. State, 16 Ind. 457; Morse v. Ranno & Robbins, 32 Vt. 600; Gwynn v. Homan, 15 Ind. 201; Holdam v. Cold Spring, 21 N. Y. 474; Leech v. Waugh, 24 Ill. 228; Connehan v. Ford, 9 Wis. 250; Daniels v. The People, 21 Ill. 439; Holdam v. Cold Spring, 23 Barb. 103; Bissell v. N. Y. Central R. R., 26 ib. 630; Hays v. State, 8 Ind. 425; State v. Hill, 10 id. 219; Smith v. State; 3 Zab. 130; State v. Sarton, 2 Strob. 60; State v. Atherton, 16 N. H. 202.
In this list of authorities the gist is, that a dedication may be inferred from public use — a proposition I do not understand the defendant combats, and to which I. assent.
By the rule established by the courts, the contrary prevails in New York and Vermont, and by acts of the legislature in Massachusetts and Bhode Island.
We have no evidence that this question has been determined in other than the states mentioned. I do not claim that no decisions have been reported. My limited researches have not reached them. It seems, then, that the reasons that have been met with in this discussion and determination of questions involved in the suit at bar would sanction this conclusion: that municipalities are not liable to repair highways made by dedication until they have accepted and adopted them. That this acceptance need not be made by any formal act or resolution ; that the working, grading, bridging, opening, by removing obstructions, and acts of like import, are sufficient for this purpose.
In this suit there is no evidence of any act of recognition till after the occurrence of the accident and injury. Perhaps this might bind the city in the future, but to hold that this would create a retrospective liability, would be to hold that present acts of adoption tend to prove a prior adoption. It is needless to combat such a proposition.
The defendant asked the court to instruct the jury :
“ That, in order to make the city liable in this action, plaintiff must satisfy you from evidence that Sixth street extension, at the place where the accident is alleged to have occurred, had been accepted by-the city as a public street, opened for the public travel .prior to the time of the accident.” This was refused. It should have been given, and the refusal is error.