Hibberd v. Mellville

BELCHER, C. This is an action to recover damages for trespasses alleged to have been committed by the defendant in entering upon the land of the plaintiff, riding over and across the same; and cutting down a gate thereon. The defense set up in the answer and relied upon at the trial was that the gate cut down was upon a road which had become a public highway by dedication and user by the public for more than fifteen years. The complaint alleged that the plaintiff had been damaged by the trespasses complained of in the sum of $325, but the court found that she was damaged by the cutting of the gate only, and in the sum of $5, for which sum. with costs, judgment was given in her favor. The defendant moved for a new trial, which was denied, and has appealed from the judgment and order.

The principal question presented for decision is as to whether or not there was a public highway extending across plaintiff’s land, and over which the defendant had a right to travel. It is not pretended that the road was ever laid out or established as a highway under the provisions of the code, and the only question is, Had it been dedicated by the owners of the land, and accepted and used by the public, so as to constitute- it a public highway ? The findings of the court are very full, covering all the probative as well as the ultimate facts, and so far as they need be stated are as follows: “That the plaintiff and her predecessors in title have permitted the defendant and his neighbors .... to pass over the land of [881]plaintiff.....While they have been so traveling over the said land of the plaintiff for more than twenty years without any express understanding between the public and the plaintiff or her predecessors, the route has never been confined to one place for any considerable length of time, and has always been under the control of the plaintiff and her predecessors in title, arid has been changed by her and them at their pleasure; and there have during all of said time been gates kept up by the plaintiff and her said predecessors on the route or routes traveled across the land of plaintiff, and at the time of the commencement of this action, and on the said twenty-second day of April, 1891 (the day the gate was cut down by defendant), there were, and are. now, five gates maintained by the plaintiff on the said route so traveled by the defendant and others. From said dwelling of plaintiff to the north side of her lands she has a lane, across which she has three of said gates, and between two of them the lane widens out, so that plaintiff uses the space between them as a corral, and what travel passes over said road passes through said corral. That plaintiff and none of her predecessors in interest in said land ever intended to dedicate a right of way to the public across said land, and they, or neither of them, have ever so dedicated to the public such right of way. That the road claimed by the defendant to be a public highway across the lands of the plaintiff has never been accepted by the public as a public road, and the road overseers of the road district in which the said lands are situated have not for a period of eleven years next prior to the trial of this action, or at any other time, caused any work to be done thereon, or any public money to be expended thereon, and have never in any way exercised any acts of control or jurisdiction over the same.” Appellant contends that these findings were not justified by the evidence, and this is the main point relied on for a reversal.