95 Mich. 545 | Mich. | 1893
Plaintiff brought suit in justice's court for the value of a cow struck by one of defendant's trains in June, 1891. The declaration alleged that the cow was killed “ through the negligence of said railroad company, and because the said track was not there' fenced, and because the proper signals were not given, and because of the great speed of said engine and train." •
The cow was killed at a point which was fenced off as a highway. When defendant built its road, in 1887, it constructed the proper cattle-guards and fences on each side of said way. Defendant's counsel announced his inability to prove by record evidence the laying out of the highway, but it was shown that in 1881 a petition for
In view of this state of facts, defendant was entitled to an instruction that, for the purpose of this case, the point at which the cow was killed must be deemed a public highway. How. Stat. § 1315, provides that—
“All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads ■ which have been, or which may hereafter be, laid out, and not recorded, and which shall have been used eight years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act.”
There had been no use of the land inconsistent with its use as a highway. The road having been laid out and
The judgment must therefore be reversed, and a new trial had.