Hartley v. Vermillion

GAROUTTE, J. This action was brought to restrain the defendants from obstructing a road which plaintiff alleged was a public highway. The court found as a fact that the [16]road was a public highway, and granted the relief asked. The appeal is taken from the order denying a motion for a new trial.

Some point is made that the road is a statutory private road, but, in view of the fact that it was never opened and laid out in accordance with the provisions of the statute relating to the laying out of private roads, there is nothing in that point; and the single question presented relates to the sufficiency of the evidence to sustain the findings of fact. The evidence in all substantials is uncontradicted, and, weighing that evidence in the balance furnished by the law, the court is convinced that it fails to support the finding of fact to the effect that the road was a public highway. The evidence of plaintiff is all to the effect that the people generally had used the road in dispute for fifteen years or more, to the knowledge and with the acquiescence of the defendants, the original owners of the land upon which the road is located; and this is all. Cooper v. Monterey Co., 104 Cal. 438, 38 Pac. 106, 107, was just that kind of a case, and there the court said: “The finding that the strip of land in question was traveled and used by the public ever since 1872, with the knowledge of plaintiff, and without objection on his part, is only the finding of probative facts tending to prove a dedication; but the fact of dedication—which, by the way, is neither alleged nor found—does not necessarily follow from these probative facts, since they are not necessarily inconsistent with a total absence of intention to dedicate, and may indicate merely a license. The finding that the strip of land ‘is a public highway,’ whether deemed an ultimate fact or a conclusion of law, is not justified.” In the same case the court also said: “The evidence on the part of the defendant was sufficient to justify the finding as to the user by the public with the knowledge of plaintiff, and without objection from him, but nothing more in favor of defendant. As this finding is obviously insufficient to support the judgment, I think the order and judgment appealed from should be reversed.” While the court finds a statement in Hope v. Barnett, 78 Cal. 14, 20 Pac. 245, which might be construed as supporting the doctrine that mere user of a highway with knowledge of the owner, and with his consent, or without objection upon his part for a certain period of time, creates a dedication, yet such cannot be said to be the law in this