12 Or. 221 | Or. | 1885
This is a suit in equity for an injunction to restrain
The manifest object ■ of this suit is to determine whether a highway exists across the lands of the plaintiff. Analyzed, the complaint is nothing more nor less than an action of trespass quare clausum fregit, to which the defendants plead in effect, (1) not guilty; (2) justification, that the fence or gates which they removed were obstructions to a public highway, which they had a right to remove. The replication denied that it was a public highway, and that was the issue to be tried. Indeed, it was said at the argument and in the briefs that the only question in the case was whether or not there is a highway across the plaintiff’s land. The mode by which it is sought to determine this question is not in the ordinary course of law, and ought not to be tolerated unless justified by particular facts which authorize the jurisdiction of equity. The practice of granting injunctions in cases»of trespass is of comparatively modern origin, and is a jurisdiction sparingly indulged; and only upon a state of facts which show that the injury would be irreparable, and the remedy at law inadequate to redress the wrong or injury complained of.
“Equity,” said Pearson, J., “does not extend its jurisdiction either to offenses against the public or to civil trespasses. In reference to the former no exception has ever been made; but in reference to the latter an exception has been allowed, after much hesitation, and jurisdiction assumed for the prevention of torts or injuries to property by means of the writ of injunction under certain restrictions, namely: two conditions must concur in order to give jurisdiction, the plaintiff’s title must be admitted, or be established by a legal adjudication, and the threatened injury must be of such a nature as will cause irreparable damage.” (Gause v. Perkins, 3 Jones Eq. 178. See also Bolster v. Catterlin, 10 Ind. 118; Jerome v. Ross, 7 Johns. Ch. 334; Cooper v. Hamilton, 8 Blackf. 378; McMillan v. Ferrell, 7 W. Va. 229; Smith v. Pettingill, 15 Vt. 84.)
Now, what is the injury of which the plaintiff complains? Simply that the defendants have torn down his fence or gate and driven their team across his meadow, whereby the grass has been trampled down and destroyed. It will hardly be contended that the destruction of the fence or gate is not susceptible of pecuniary compensation, and for which the law does not afford a prompt, adequate, and complete remedy. It is true that grass trampled down and destroyed cannot be made to grow again, but the injury can be adequately atoned for in money.
There is another consideration to which it may not be amiss, to refer. Upon the admitted facts, the record discloses that the-alleged road never was, in one sense, an open and unobstructed, highway. It has always had gates or bars across it, through which those traveling over it had to pass. The claim that it is: a public road is based upon user and dedication. It is admitted, that it has never been worked, repaired, or accepted by the-proper authorities- of the county. That the owner of the soil, may make a qualified dedication of a road or way is established: by judicial authority. He may reserve the right to keep a gate-across it, or to subject it to any uses by himself or others nok inconsistent with the public use, and if the public accept it, ik takes it subject to these uses. (Wood Nuis. §§ 242, 243, and note of authorities; Davies v. Stephens, 7 Car. & P. 571.) But,
“No use or acceptance of the way by the public is shown, nor ;any recognition of it by the proper authority, the county court. That a right of way may be claimed by dedication to the public ’.use by the owner of the soil is not denied; but with us this • doctrine must be cautiously admitted. Its too easy application would defeat the right of the owner of the soil to have compen- ■ sation for damages sustained by laying out a road over his land, do which he is entitled when such road is laid out by the proper ; authority.”
In Jackson v. State, 6 Cold. 535, the principle is cited with approval from Angelí on Highways that mere user, however, ■uninterrupted by the public, and long continued, is not sufficient to give the right in the public; but that such user must be accompanied by acts showing the user to have been under a claim of right, and not merely by permission of the land-owner; such as working the road, keeping it up by the public, repairing It, or removing obstructions, etc. “ A -permissive use of a way. by certain portions of the community constitutes a license and not a dedication, and is ordinarily something that may be revoked.” “Everything, in such cases,” said Barrows, J., “depends upon the intention of the party whose dedication is claimed, and upon the character of the permission given and the •use allowed.” (White v. Bradley, 66 Me. 259; citing Stafford v. Coyney, 7 Barn. & C. 257, and Barraclough v. Johnson, 8 Ad. & E. 99.) In Hall v. McLeod, 2 Met. (Ky.) 101, Simpson, C. J., said:—
“ It cannot be admitted that where the proprietor of land has a pass-way through it for his own use, the mere permissive :use of it by other persons for half a century would confer upon them any right to its enjoyment. So long as its use is merely permissive, it confers no right; but the proprietor can prohibit its use or discontinue it altogether at his pleasure. ■ A different
See also Kilburn v. Adams, 7 Met. 33; State v. Nudd, 23 N. H. 335; Morse v. Ranno, 32 Vt. 600; Jones v. Davis, 35 Wis. 382; State v. Harden, 11 S. C. 366; Burnham v. McQuesten, 48 N. H. 451; Sharp v. Mynatt, 1 Lea, 376; Wright v. Tukey, 3 Cush. 290.
Without intending in the slightest degree to express any opinion upon the merits, the real controversy in this case turns upon the question whether or not there is a public road where the alleged acts of trespass were committed. Upon this point, although there is not much controversy about the facts in evidence, the inferences sought to be drawn from them by the parties are wholly irreconcilable and antagonistic. Upon the one hand, it is contended that the evidence establishes that the plaintiff intended to dedicate it to the public as a highway. On the other hand, it is contended that the plaintiff, and those who preceded him in the fee, did not intend it as a dedication to the public, but as a private way for his own convenience, and that the use of it by the public was only permissive, and constituted a license, which was revocable at his pleasure. Here, then, are questions of fact to be investigated, which a jury, under the guidance of a court of law, are peculiarly fitted to determine, and which the authorities cited show that the remedy at law is not only appropriate, but competent, to render a judgment which shall establish the right or estate, and do complete j ustice to the matter in controversy. In Hacker v. Barton, 84 Ill. 314, the court holds, following Wing v. Sherrer, 77 Ill. 200, that, “ as a general rule, it is better in all cases of a doubtful character, presenting a conflict of evidence, that parties should be remitted to whatever remedy they may have at law,
The decree is reversed, and the bill dismissed.