16 Utah 240 | Utah | 1898
This action was brought to recover damages from the defendant, who was road supervisor of a certain district in Utah county, for removing fences which the plaintiff had erected across a road; the defendant claiming that the road was a public highway. The cause was tried by the court without a jury, and decided in favor of the defendant.
The decisive question on this appeal is whether the road in dispute is a public highway. Counsel for the appellant,
In the case at bar the evidence shows that the road in dispute was used and traveled by the public continuously since 1862, and without interruption until 1895, when the plaintiff erected the fence across it, of the removal of which he complains; that the patent from the United States to the land in question was issued in June, 1883; that the road was surveyed by order of the county court, and by that body declared to be a county road, in July, 1883, with
Both the findings and proof show that the respective owners of the soil, for more.than 11 years after the issuance of the patent from the United States and the declaring of the road to be a public.highway by the county court, acquiesced in the use of the land as such highway. The road was surveyed, laid out, and declared a public highway under the act of 1880, which was then in force, and the owner of the land, offering no objections thereto, but, according to the findings of the court, by which we are bound, acquiescing and agreeing to its use as a public roadway during all of those years, cannot now be permitted to question the right of the public to the use of the
While, in all cases of dedication of land to public use, the intention of the owner to dedicate and public user are necessary ingredients, still no particular ceremony in the dedication is necessary. If the intention and user appear, it is sufficient; but the fact that the public occasionally travel over vacant and unoccupied land, not appropriated to any particular use, without objection from the owner, though he may be aware of such use by the public, will not justify or authorize the inference of intention to dedicate. Where, however, as in the case at bar, the public assume to appropriate land for public use, and the owner interposes no objection, but acquiesces in its continual use by the public for such a length of time that the public convenience and accommodation might be materially affected by an interruption of the enjoyment, an intention to dedicate will be presumed. Wilson v. Hull, 7 Utah 90; City of Cincinnati v. White’s Lessee, 6 Pet. 431.
We do not deem it necessary to the decision of this case to consider any of the questions respecting eminent domain or prescription raised in the briefs, or any other questions presented. The judgment is affirmed.