Bequette v. Patterson

Haynes, C. Plaintiff, claiming to be the owner of certain land through which an alleged highway ran, closed up the road by fencing across it.

The defendant removed the fence, and plaintiff brought an action of trespass to recover damages laid at one hundred dollars, and for an injunction against threatened trespasses of a like character if plaintiff should again erect the fence.

The defendant answered, denying plaintiff’s ownership of the land, alleging that he was road overseer of the district including this road, that the road in question was and is a public highway, that the fence was an obstruction and nuisance, and that he removed it under an order made by the hoard of supervisors, and denied that plaintiff had sustained damage. For a separate answer he alleged that plaintiff threatened to renew the obstruction, and prayed for an injunction.

The cause was tried by the court, and upon the findings judgment was entered for the defendant. The appeal is from the judgment and an order denying a new trial.

Appellant attacks the findings, and also specific numerous errors of law occurring upon the trial.

We think the evidence is sufficient to justify the find[284]ing that the way in question is a public highway. That it was originally intended for and was used as a racetrack appears probable. It was not, however, a circular track, but was nearly straight, was adjacent to the town of Forest Hill, and connected at each end with public roads, and there is much evidence tending to show that for many years it had been used by teams, stages, and other travel. By one of the witnesses it was spoken of as a “ back street.” The way appears to have been known as the “racetrack” some thirty years ago, and, though travel over it has been at times interrupted, there seems to have been no interruption for the last twelve or fourteen years until the erection of the fence by the plaintiff, which was removed by the defendant. The court also found that the way had been legally and actually dedicated by Charles Harley before the plaintiff became the owner of the land. Whether this finding is sustained by the evidence it is not necessary to consider.

.A dedication of the way, either express or implied, from long and uninterrupted use having been found, the finding that plaintiff is not the owner of the parcel of land over which the road passes becomes immaterial, for if it is a public highway the ownership of the land could give him no right to obstruct it; and for a like reason it is immaterial whether the county owns the fee of the land covered by the way, or only an easement; since in either case it has the right to an unobstructed way.