Stacey v. Miller

• Decision Date: 31 March 1851
• Citation: 14 Mo. 478
• Parties: THOMAS STACEY v. SAMUEL MILLER.
• Court: Missouri Supreme Court

14 Mo. 478

THOMAS STACEY

v.SAMUEL MILLER.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM MARION CIRCUIT COURT.

PRATT, for Appellant. 1. A man may dedicate land to the public. To do this requires no deed, nor any grantee. Thus, if he permits it to be used as a burying-ground, or as a common highway, street or square. 2. The dedication, requiring no deed, may be proved from circumstances. Twenty years' possession by the public will establish a highway; but any acts, such as fencing out a highway, and general permission to use it as such, would be sufficient to establish the dedication; or any circumstances that would show the intention of the owner to release his right to the public. 3 Kent's Com. 450, and cases cited; City of Cincinnati v. White, 6 Peters, 431; 19 Pick. 405; 10 Peters, 662; 12 Mo. R. 622. In the case before the court the road has always been used by the public, and fifteen years before suit, it had been fenced out for the public, and continued to be used as such with the assent of the owner. He had, therefore, dedicated to the public, as a highway; it had become such, and any obstruction thereto could be lawfully removed. Any person may establish a highway through his land, and when established it is beyond his control.

ANDERSON & RICHMOND, for Appellee. 1. The damages were evidently not excessive, but under the evidence less than might have reasonably been expected. 2. The instructions given by the court at the instance of the defendant were even more favorable to him than consistent with the law. 3. The fourth instruction asked by the defendant was properly overruled for obvious reasons. Mere user of one's land by the neighbors, as a neighborhood road cannot, in a new country, amount to a dedication to the public. To create a dedication of a road, or right by prescription, the implied assent of the owner of the land must have existed for at least twenty years. Such assent could not, in this country, be presumed from the use of wild lands as a way by the public; such a presumption or intendment by the courts would work great injustice, and, indeed, be absurd. In this case, the road had been defined by a fence for fifteen years only. Any act, by the owner of the land, within twenty years past, which shows an intention to exclude the passing of the public, or to appropriate to himself a use of the land inconsistent with its use as a road, negatives the dedication. The fencing up of the lane rendered it unfit for use as a road, and showed (within twenty years) that Miller did not intend a dedication. The inconvenience of the appellant in getting to his lands does not by law give him a right of way over the land of another. Such a right of way the law sometimes gives, where necessity requires it, but even then the convenience of the owner of the land to be passed over must be consulted. Green v. Chelsea, 24 Pick. 71; Commonwealth v. Newberry, 2 Pick. 162; Turnbull v. Rivers, 3 McCord, 131; Bordeau v. Williamson, 2 Hays, 301; McDonald v. Lindell, 3 Rawl. 492; 2 Hill (S. C.) 387, 641; Lawton v. Rivers, 2 McCord, 455.

NAPTON, J.

This was an action of trespass for entering the plaintiff's close and pulling down his fences. The defense was, that the ...