Sherwood v. Ahart

BURNETT, J.

The action was to enjoin defendant from interfering with the free use and occupation of a certain highway by plaintiffs, and from interfering with or preventing plaintiffs, or either of them, from entering upon any portion of said way and repairing the same. The theory upon which the action was tried is that said way constitutes a public highway and that said plaintiffs were especially damaged by reason of the interference on the part of the defendant with the use and enjoyment of the same on the part of the former. There is, however, no allegation in the complaint that said way constitutes a public highway, it being designated as a “wagon

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road, commonly known as Brewer’s Road,” and it was alleged “that plaintiffs have traveled said wagon road, known as Brewer’s Road, for more than ten years last past, and are the owners and in possession and occupation of a right of way over said northeast quarter of section 35, along and over the course of said Brewer’s Road, and are entitled to travel and pass over the same at any and all times, and it is necessary for them and each of them to travel the said road in order to reach the said city of Plaeerville. ” It is thus to be seen that plaintiffs presented, by their complaint, the issue as to their ownership merely of a right of way, but as before stated, the ease was tried without objection upon the theory that said wagon road constituted a public highway and had been used' as such for many years, and the court so found, as the following finding discloses: “That said road, known as Brewer’s Road, has been used and traveled by the general public as a public highway continuously since the year 1860,” and it must be said that abundant evidence is found in the record to support said finding. The manner in which it became a public highway was through a dedication by the owner and acceptance by the public. Such dedication is implied from the long and continuous use of the said road with full knowledge of the land owners interested, without asking or receiving any permission, and without objection from anyone for a period of time beyond that required by law to bar the right of action. Under the authorities, it must be held that such long-continued use without objection, and with the acquiescence of the owners, raised the implication of dedication for such public purpose.

{Schwerdtle