58 Iowa 567 | Iowa | 1882
“Ways by prescription, and ways by dedication rest upon entirely different principles. The first is established upon evidence of use by the public adverse and continuous, for a period (in Iowa of ten years, or more) from which use arises a presumption of a reservation or grant, and acceptance thereof, or that it has been laid out by the proper authorities, of which no record exists. The second is created by the permission or gift of the owner, and upon the acceptance of such gift by the public authorities, it becomes a 'way, and the owner cannot withdraw his dedication.” Endicott, J., in Commonwealth v. Coupe, 128 Mass., 63.
It is provided by statute: “In all suits hereafter brought, in which title to any easement in real estate shall be claimed by virtue of adverse possession of the same for the period of ten years, or by prescription, the use of the same shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession shall be proved by evidence distinct from and independent of the use, and that the party against whom the claim is made had express notice thereof; and these provisions shall aj>ply to public as well as private claims.” Code, Sec. 2031.
Where it isr claimed a highway has been established by dedication, the use is not material, except in cases of doubt it may aid in establishing a dedication by a gift, or grant, of the owner. But when it is claimed it has been established by prescription, the use is the only evidence upon which the right is usually based. The instruction above set out does not clearly distinguish between the two modes. One thing, however, is clear, and that is, it holds a highway may be established by user alone, if the owner has knowledge of such use. Under the instruction it is not a material question whether the owner has knowledge of the claim made; that is, that a highway was claimed. The instruction therefore, we do not think, can be sustained. For, as we think, the
In other words, a highway cannot be established by user alone, although the owner may have had knowledge of the use but did not have “express notice” a claim was made based thereon independent of, or addtional to, the mere use. Therefore it does not matter whether the instruction is based on prescription or dedication, or both, it is erroneous. We have no occasion to determine whether the statute applies to a case where the highway has been used by the public for ten years prior to the first day of September, 1873, when the statute took effect, because no such question was submitted to the jury.
Beversed.