37 Mich. 464 | Mich. | 1877
I. The defendant in error recovered judgment in the court below for a special injury occasioned to her by the obstruction of what she claimed was a public highway. The principal contention on the trial was over
II. On the question whether the locus in quo was a public highway considerable latitude was allowed in the examination of witnesses, and we think very properly. As already stated, user was relied upon to establish the public character of the way, and as the occasions for its use appear to have been very infrequent, the' plaintiff supplemented proof of these by evidence tending to show an understanding in the community that the way was public. In connection with evidence of the use we think this was competent; it went
III. Among other facts shown by the plaintiff was this: that in one season the overseer of highways had allowed her husband to work out a road tax on the disputed line. Upon this the defendants requested the court to charge the jury that the act of the overseer did not make the strip of land 'a public highway; and his refusal to do so is assigned for error. But it appears from the bill of exceptions that he did give the instruction, with the addition that the fact might nevertheless be considered as bearing upon the question in dispute. No reasonable objection can be made to this; it was very fair and entirely correct.
IV. It is also objected that the instructions of the judge left it to the jury to find whether or not there had been a ten years’ use of the way as a public way, so as to establish it as such under the statute (Comp. L., § 1268) when there was no evidence tending to prove a user for that length of time. Upon this we can only say that the bill of exceptions does not expressly negative the giving of such evidence, and we must suppose the instruction was warranted until the contrary is shown.
V. The question whether the plaintiff did not have .another route for taking off her wood, by a town line road, was mooted on the trial, and the defendants requested the court to submit to the jury the question whether there was on the town line a public highway. This was done with the following explanation: “You will determine from the evidence whether the road was open or not. I will say to you that as far as this question is concerned, that it could not have been a public highway unless it was open to public travel so that people might have traveled through on the road if they saw fit to do so.” This was objected to, and it is correctly said that there might have been a public highway whether it was capable of being used or not. But the instruction must be examined in the light of the facts ■in this case, and of the point in dispute. It was immaterial whether there was in fact a highway on the town line
We have noticed all the exceptions that seem to us to-require attention, and find none of them well taken.
The judgment must be affirmed with costs.