Whitesides v. Green
13 Utah 341
Utah
1896
Check Treatment
Bartch, J.:

This controversy arose over a public highway, running along the western line of the appellant's land, and south through some leased land. It is about a mile and a half long, and connects two other highways, running east and west. Counsel for the appellant concede the existence of the highway, but its exact location and its width are in dispute. On the question of the location the court *348found substantially that the western line of the appellant’s land formed the center line of the two highways, and that it extended on the same line through his leased land. This finding seems to be in entire accord with the location recognized by the appellant, as shown by his pleading and evidence. Among other things, he alleged that on the 25th day of March, 1895, he “had erected, and there was standing on said farm, parallel with the westerly boundary thereof, a substantial fence, separating the same from an adjoining highway.” At the trial he testified, as appears from the abstract, that on the same day “there was located on said land, parallel with and east of the western boundary line thereof, a fence which witness had erected at a distance of about eight and one-f ourtli feet east of said western boundary line”; and on cross-examination claimed expressly that the road was one rod wide. If it is one rod wide, and the appellant erected a fence eight and one-fourth feet east of, and parallel with his western boundary line, to separate his farm from the “adjoining highway,” then it is perfectly clear that the western boundary of his land forms the center line of the highway, whatever may be the width thereof. Thus, by his declarations and acts, he has distinctly admitted its location, and cannot now be heard to dispute it. Whether or not there was originally an express dedication is not material, because of the admission of the appellant, and because it appears from ,the evidence that the highway has been traveled by the public continually and uninterruptedly for a period of more than 15 years. Under these circumstances the law implies a dedication of the land on which the highway is located to the use of the public for the purposes of travel.

The next question is, how wide is the highway which, the public have acquired? Counsel for the appellant *349appear to insist that the public have only a right to travel on the beaten path, and must be confined to one rod in width. We cannot agree with counsel that, where the public have acquired the right to a public highway by user, they are limited to such width as has actually been used by them. Generally, the greater part of the travel on a .county highway is doubtless confined to the track made by vehicles, but there must be room enough for travelers with wagons, carriages, or imple-, ments to pass each other, and for necessary improvements and repairs to be made so as to keep it in a suitable condition. The right acquired by prescription and use carries with it such width as is reasonably neces-' sary for the public easement of travel, and where the public have acquired the easement the land subject to it has passed under the jurisdiction of the public authorities, for the purpose of keeping the same in proper condition for the enjoyment thereof by the public. Such authorities are bound to keep the road open and in suitable repair, and, if obstructions be placed thereon, it is their duty to remove the same, and care for the rights of the public. The easement acquired by the public, however, vests in them the mere right of passage over the land, and does mot divest the owner of the fee, and he may continue to make any use thereof which is not incompatible with the public easement. This private right is not inconsistent with the public use, nor with an effectual dedication, and must be respected by the authorities, so far as it does not interfere with a safe, convenient, and unobstructed right of passage. The purpose for which the easement was acquired must detérmime the effect of the light parted with by the owner, and the width necessary for the enjoyment of the highway by the public. Where the easement is acquired by prescription or use such width must be determined from a consideration of *350the facts and circumstances peculiar to the case, because in such event the court cannot saythatin lawthe highway is of a certain width, in the absence of statutory provision. The highway having been permanently fenced, and the usual width of highways .in the locality, if shown, are pertinent facts from which, in connection with other evidence, width may be inferred. Whatever may be the width in any particular case, the easement cannot be limited, when acquired by user, to the actual beaten path. Angelí, in his Treatise on the Law of Highways, in section 155, says: “Where there is no other evidence of dedi-catioil than mere user by the public, the presumption is not'necessarily limited to the traveled path, but may be inferred to extend to the ordinary width of highways; or, if the road be inclosed with fences, to include the entire space so inclosed.”

So this court, in Burrows v. Guest, 5 Utah 91, 12 Pac. 847, speaking through Mr. Justice Henderson, said: “When a highway is established by user merely over a tract of land of the usual width of a highway, or over a tract of land where, by a survey and plat, which has been recognized and adopted by the owner, a street or highway of a certain width is laid out, the right of the public is not limited to the traveled part, but such user is evidence of a right in the public to use the whole tract as a highway, by widening the traveled part or otherwise, as the inrceased travel and the exigencies of the public may require. * * * In determining the extent of the dedication, all the circumstances may be considered, — the width of the highways in the vicinity of the land in question, the width of highways in a system of which the one in controversy forms a part, any circumstances of recognition by the owner of the fee and the public of definite and fixed limits” Washb. Easem. *137; Davis v. City of Clinton, 58 Iowa 389, 10 N. W. 768; Sprague v. Waite, *35117 Pick. 309; Ellsworth v. Lord (Minn.) 42 N. W. 389; Watkins v. Lynch, 71 Cal. 21, 11 Pac. 808; Moore v. Roberts (Wis.) 25 N. W. 564; Hunter v. Trustees, 6 Hill 407, 412.

In the case at bar as it appears from the evidence the road oyer which the dispute arose runs north and south, connecting at the north with a public highway four rods in width, running east and west, and at the south end thereof with one a part of which is four rods, and the remainder six rods wide. The highways in the locality seem generally to be four rods in width. The court found that the highway in question was three rods in width, one-half thereof being on one side and one-half on the other side of the line on which, it was located, and that such width was necessary to accommodate public travel. In controversies like this the width of the highway presents a question of fact for the jury to determine from all the facts and circumstances proven, and when such a case is tried by the court without a jury, as in this instance, then it is a question of fact to be determined by the court, and in such event the findings of fact have the same force and effect, respecting the width of the road, as a verdict. The findings will not be disturbed unless they are so manifestly erroneous as to demonstrate some oversight or mistake. Dooly Block v. Salt Lake Rapid Transit Co, 9 Utah 31, 33 Pac. 229; Davis v. City of Clinton, 58 Iowa 389, 10 N. W. 768.

It is not deemed necessary, in this case, to refer to the evidence in detail, because, from a full and deliberate examination thereof, we are convinced that it is ample to support the findings of the court; and therefore its decree, based on the findings, must stand. We have also examined the rulings of the court respecting the admission of testimony, and conclude that neither the rulings nor the record contains any reversible error. The judgment is affirmed.

Zane, C. J., and Miner, J., concur.