Riley v. Buchanan

• Citation: 76 S.W. 527,116 Ky. 625
• Parties: RILEY v. BUCHANAN.
• Decision Date: 06 November 1903
• Court: Court of Appeals of Kentucky

76 S.W. 527

116 Ky. 625

RILEY v. BUCHANAN.

Court of Appeals of Kentucky.

November 6, 1903

Appeal from Circuit Court, Hardin County.

"To be officially reported."

Action by R. L. Buchanan against R. W. Riley. From a judgment for plaintiff, defendant appeals. Affirmed.

J. P O'Meara, for appellant.

W. H Marriott and L. A. Faurest, for appellee.

O'REAR J.

This appeal involves the sufficient dedication of a public highway. Appellee claims that he, as a member of the public has the right to use a certain designated passway over appellant's land. He also claims the right to use it as a private passway. But the record shows that he has owned the adjacent land to which it is claimed as an appurtenant for only about five years. His vendor did not claim the right to use this passway, although he owned the land for 15 years.

The doctrine in this state of acquiring private passways by prescriptive use, requires a continuous adverse user by the claimant, or by him and those under whom he holds, for at least 15 years. O'Daniel v. O'Daniel, 88 Ky 185, 10 S.W. 638. Appellee's standing is alone upon the claim of the right of the public, of which he is one. It is clearly established that the passway in question has been used by the public for purposes of neighborhood travel, for travel to and from a church, and for much of the time to and from a railway station and post office, for more than 50 years. The use has been at the pleasure of the public, without let or hindrance from the owner of the servient estate, and by all means and for all purposes of travel. There are other roads that might be, and that frequently are, used by the public in passing between the same points. But this way is most traveled by a certain neighborhood to reach the points mentioned. The circuit court held that the passway was a public highway, used for such a length of time by the public as to raise a presumption of its dedication to the public by the original owner.

Counsel for appellant insists that the judgment is erroneous, because, he asserts, a right in the public cannot be created by prescription; also that a dedication of a road to the public, to be valid, must first be accepted by public authority. Technically, prescription presupposes a grant. There cannot, in fact, be a grant without some person in esse to take as the grantee. Therefore generally, when the term "prescriptive right" is used by the courts, it refers to the personal right to the use of real property which has been acquired by the claimant, or some one under whom he holds, and which has been created by operation of law. If in fact there was a grant by the owner of the fee, the grantee, and his heirs and assigns, if it were a perpetual grant, or one for a term of years, would hold according to its terms. However, from a continuous user under claim of right for such a length of time, formerly where the memory of man ran not to the contrary, but later for such time as was equivalent to the statutory period of limitation applicable to real estate, the fiction was adopted that the existence and loss of a grant would be presumed by law. It came first to be applied to claims of individual or private rights. It was deemed that a grant "to the public" would be void for want of its competency to take by grant. Jones on Easements, § 422; Washburne's Easements and Servitudes, p. 219. Appellant therefore criticises certain opinions of this court where it has spoken of the public's having obtained the right to use a passway by prescription. If the terms employed were to be limited to their ancient use and meaning, the criticism would not be inapt. But they have long since come to be used in describing the right of the public in such passways, and how created; not alone by this court, but by other courts and text-writers. Appellant's very earnest argument that a right cannot be created in the public by prescription rests upon the narrowest employment of that term, and is extremely technical. But we understand him to contend as well that long user by the public of a passway cannot create the right to continue the use, by whatever name it may be called. A highway is commonly understood to be a turnpike road, gravel road, or plank road, or the common thoroughfare established and maintained by public authority for travel by the public generally. Its establishment is by the dedication of the land to the use of the public as a highway and its acceptance and use by the public for that purpose. Ordinarily, the dedication is by statutory proceedings, showing both the dedication and the acceptance. But it is not essential that the evidence of either should be established by the records. If the owner of the fee sets apart to the use of the public a passway over his land, intending to dedicate it to the public use, it is not required to be in writing. A dedication of land to public use may be by parol. Trustees of Dover v. Fox, 9 B. Mon. 201; McKinney v. Griggs, 5 Bush, 405, 96 Am.Dec. 360; Griffey v. Bryars, 7 Bush, 473; Hall v. McLeod, 2 Metc. 104, 74 Am.Dec. 400; Beall v. Clore, 6 Bush, 677; Spurrier v. Bland (Ky.) 49 S.W. 467; Wickliffe v. City of Lexington, 11 B. Mon. 155. It is sufficient if his intention and express act are clear and coincide. In that event the dedication will be effective immediately upon its acceptance by the public. Elliott on Roads and Streets, 127. If, however, there is not an express dedication, but the owner suffers the public to use the passway, knowing it is claiming it as a matter of right, the law presumes a dedication to the public, and presumes the dedicator's intention to be in accord with the public's use. This does not depend upon whether there has in fact been an actual dedication to the public, but it is founded upon the principles of estoppel in pais. If the real owner suffer the public generally to so use his land as a passway, under a notorious claim of right, for a great length of time, whereby others may have been induced to buy property in that vicinity relying upon the apparent right of the public to use this passway, and by which the purchase price of their lands may have been affected, it is unfair that the owner should be permitted to gainsay the truth of it. The law operates upon his conscience, and makes effectual that which he has suffered for so long to appear to be so, by raising the conclusive presumption that he has actually done what he allowed the public to believe he had done--dedicated the passway to the use of the public. Elliott on Roads and Streets, 132; Jones on Easements, 422. A dedication by the owner to the public use is not alone sufficient. A dedication sometimes imposes burdens upon the public as well as grants privileges. It would not do to allow one of his own volition merely to thus impose an onerous burden upon an unwilling public. It is therefore necessary that there should be an acceptance by the public as well as a dedication by the owner. As already indicated, this acceptance may be signified by the action of those officials whose duty it is to represent the public in those matters. A formal order upon the records of the proper official body would, of course, be the most satisfactory manner of acceptance. But much less may be equally effective. As, for example, it has been held, the appointment of overseers, the allotment of hands, or the maintenance of the highway at the public expense are sufficient evidence of the acceptance. Commonwealth v. Abney, 4 T. B. Mon. 479; Gedge v. Commonwealth, 9 Bush, 64; Greenup Co. v. Maysville & B. S. R. R. Co. (Ky.) 21 S.W. 351; L., H. & St. L. R. R. Co. v. Commonwealth, 104 Ky.

35, 46 S.W. 207. The cases from this court cited just above all raised the question of acceptance of public roads by implied dedications by long user, where it was shown that the county officials had by some overt act, and generally of record, recognized and adopted the dedicated highway as a public road. In none of these cases does it seem that the question has been raised whether a sufficient acceptance on behalf of the public might have been by any other method than those just mentioned. A number of officially unreported cases decided by this court have assumed that it could. Gatewood v. Cooper, 38 S.W. 690; May v. Blackburn, 25 S.W. 112; Burch v. Blair, 41 S.W. 547; Potts v. Clark, 62 S.W. 884; Wright v. Willis, 63 S.W. 991; the Eastern Cemetery Co. v. City of Louisville, 15 S.W. 1117.

These cases are criticised by counsel for appellant, and claimed to have been not well considered, and in conflict with those reported cases holding an acceptance by the public authority to be essential to the complete dedication of a public road. That an acceptance of a public highway--as distinguished by some eminent authorities from a mere public passway--may be by acts less than the recognition of the dedication by an order of record, or by the appointment of overseers, or the allotment of hands by the county court, or the expenditure of public funds to keep them in repair, there is abundant authority. Of this Jones on Easements (section 449) says "Such acceptance, however, need not be formal, but may be shown by circumstances, such as long-continued use by the public, by improvements or repairs of the way, by grading, macadamizing, building, or the like, or by the taking charge of the road by the proper public officials. Where there has been a dedication of the highway, and this appears to be beneficial to the public, acceptance will be presumed from slight circumstances." Same, section 450: "In some cases an acceptance by the public of land dedicated to use as a highway has been established by use alone, without any action on the part of the municipal officers." The Supreme Court of Wisconsin, in Buchanan v. Curtis, 25 Wis. 99, ...