Gage v. Pittsfield Tp.

• Decision Date: 19 June 1899
• Citation: 79 N.W. 687,120 Mich. 436
• Court: Michigan Supreme Court
• Parties: GAGE v. TOWNSHIP OF PITTSFIELD.

79 N.W. 687

120 Mich. 436

GAGE v. TOWNSHIP OF PITTSFIELD.

Supreme Court of Michigan

June 19, 1899

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by Joseph E. Gage against the township of Pittsfield. Judgment for plaintiff, and defendant brings error. Affirmed.

John P. Kirk (Randall & Jones, of counsel), for appellant.

Lawrence & Butterfield, for appellee.

MOORE J.

Plaintiff recovered a judgment of $250 against the defendant for injuries received by reason of a defective highway, from which judgment defendant appeals. The accident occurred near Pittsfield Junction. It was the claim of plaintiff that the highway was laid out in 1882, and had been in use ever since. It was the claim of defendant that the proceedings to lay out the highway were void, and that it had not been used as a highway for 10 years. The records relating to laying out the highway were offered in evidence. Their admission is said to be error, because the proceedings were defective. It is also said evidence that it was generally understood in the community that it was a public highway was incompetent. Section 1315, How. Ann. St., provides, among other things that "all roads which have been or may hereafter be laid out and not recorded, and which shall have been used eight years or more, shall be deemed public highways." The object of this proof was to show that a highway had been laid out, and, though not properly laid out, had been used sufficiently long to become a highway. A like statute was construed in Potter v. Safford, 50 Mich 47, 14 N.W. 695. In commenting upon this statute, Judge Cooley says: "The question, then, is whether usage alone for ten years is sufficient. *** It is notorious that the proceedings in a great many cases are carelessly managed and defective, and will not stand the test of legal scrutiny. In a strict sense, a road is not laid out unless the proceedings are in conformity with the law, but, in a popular sense every road may be said to be laid out where proceedings have been taken by the highway authorities for the purpose however irregular the proceedings may be or however imperfect. *** It is of great importance, after a way has been used for many years, in reliance upon proceedings supposed to be effective to constitute it a highway, that the parties who had acquiesced should not be encouraged or suffered to inquire into technicalities for the purpose of defeating the public right. Ten years is ample time to allow for contesting such proceedings. If the time were shorter, it would, I think, be still better." In Village of Grandville v. Jenison, 84 Mich. 68, 47 N.W. 603, it is said: "The extent to which a road is traveled does not govern. The law does not fix the number which must travel upon a road in order to determine whether it exists by user. It must be used by the public, and the public are all who have occasion to use it. In the case of Baldwin v Herbst, 54 Iowa, 168, 6 N.W. 257, it was held that it would be sufficient to constitute a highway by user if it was traveled over as much, or about as much, as it would have been if laid out by the statute, and traveled as much as the circumstances of the surrounding population and their business required." Proceedings had been taken by the highway authorities to lay out this road as long ago as 1882. The petition was signed by the railroad company as well as others. A release of right of way was obtained through legal proceedings and the payment of damages to some...