7 Ky. Op. 121 | Ky. Ct. App. | 1873
Opinion by
It seems pretty clear that the -state road, known also as the Salem or Foard’s Ferry road, does not now run exactly where it was established by the order of the county court made in 1818. But it is manifest that the change of the location was recognized and ratified as early as 1837 by McKay, over whose land it was made. It does not matter that the change was gradually brought about and that the location did not become fixed, until McKay fenced, or caused his land on either side of the present road to be fenced. By so doing he appropriated to himself the lands over which the road had formerly passed and indicated in an unmistakable manner his intention to dedicate to the public the use of the present route. This dedication the public accepted, not only by using the passway thus set apart, but the keeping of it in repair, by the surveyor and hands, from time to time appointed and assigned by the county court to such duty.
The ^ fact that McKay,, the owner of the "fee, when acting as surveyor, worked on and kept in repair the present road, places the fact of the dedication beyond,all question.
The board of trustees of the town of Princeton need not, therefore, show title, either through the order of the county court establishing the road nor by prescription growing out of long usage.
The estoppel upon the owner of lands, and those claiming title through him growing out of a dedication to the public, does not depend upon the length of time for-wl|ich the use has been engaged. Washburn Real Property, Vol. 2, page 456.
The doctrines enunciated in the opinion' of this court in the case of Bowman v. Wickliffe, 15 B. Monroe, do not control the questions involved in this case. In the case cited, the attempt was to show the existence of a private passway, and not of a public highway. The fact that the county court required the road to be kept in repair thirty feet and no more, does not show an intention to' assert claim to this thirty feet alone. The entire width of the land had been dedicated by McKay, and the public was under no obligation to keep in repair a greater width of its road than its necessities recraired.
Appellant holds title through McKay. It is bound by the estop-pel that would have bound its vendor had he retained the title, and it cannot escape the effect of this estoppel because the public trespassed upon its property when unenclosed.
Nor because it was once allowed to encroach upon the public. highway without complaint.
The town of fhinceton, having succeeded to the rights of the county court, was entitled to have its temporary injunction perpetuated.
The judgment of the court below is therefore affirmed.
