Stickley v. Sodus Tp.
| Decision Date | 07 October 1902 |
| Citation | 131 Mich. 510,91 N.W. 745 |
| Court | Michigan Supreme Court |
| Parties | STICKLEY v. SODUS TP. |
Error to circuit court, Berrien county; Orville W. Coolidge, Judge.
Action by Lucy Stickley against the township of Sodus. From a judgment for plaintiff, defendant brings error. Reversed.
Plaintiff was driving with a horse and buggy down a roadway leading from the top of the bluff along the east bank of the St Joseph river, in the defendant township, to what is known as 'King's Landing.' The bank is high and steep. She was precipitated over the bank and injured. The negligence alleged is the failure to erect suitable barriers along the side of the road. The principal defense is that the road is not a public highway, but a private road, and that the defendant was under no obligation to keep it in repair. The sole question presented for determination is, was this road a public highway? If it was, defendant is liable; if it was not, the defendant is not liable. It is conceded that the owners of the land never dedicated this road to the public for a highway; that no proceedings were ever instituted to lay it out as a highway; that it was originally a private road; and that the township authorities never exercised any control over it, and never accepted it as a public highway unless the use of it by travelers without objection amounted to such control and acceptance. Plaintiff bases her right to recover entirely upon the theory that this road has become a public highway by user alone, under the statute (Comp. Laws � 4061), which reads: 'All highways regularly established in pursuance of existing laws, or roads that have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, * * * shall be deemed public highways.' The facts are not in doubt. The townships of Sodus and Royalton, in Berrien county, constitute town 5 S., range 18 W. The St Joseph river, a crooked, navigable stream, divides township 5, range 18, into about two equal parts; one being Sodus, the other Royalton. On the Royalton side of the St. Joseph river near where this injury occurred, the land is bottom land, and but little higher than the bed of the river. On the Sodus side the land is many feet above the river bed, and in the vicinity where the accident occurred it is about 55 feet higher. On account of the bluffs on the east side of the river, there has never been a bridge erected across the river between the city of St. Joseph and Berrien Springs, a distance by water of 25 miles, until within the last three or four years, when a railroad and carriage bridge was built by the railroad company at Somerleyton, a few miles to the north and west of the place where this injury happened. St. Joseph river has always been navigable for flat-bottomed boats, scows, rafts, and the like. In the early days of the county, between 1850 and 1870, when lands were being cleared in Sodus and vicinity, it was necessary that logs, wood, and other forest products be put into the river and floated down to St. Joseph, at the mouth of the river. Sawmills were built in Sodus township, and lumber manufactured and transported down the river on rafts, boats, and scows. The township authorities of Sodus township never laid out and established any highway running down to the river. They had laid out and established certain highways running east and west and north and south, and had laid out and established a highway running in a northerly and southerly direction near the bluff of the river, which is called in these proceedings the 'River Road.' In some places this River road is quite close to the bluff of the river; in other places quite a distance away from the river. The township had also, among other roads, laid out and established a road on the section line between sections 10, 11, and 12 on the north and 15, 14, and 13 on the south. This road is called in these proceedings the 'Sodus Road,' and extends no farther west than the River road. Some time between 1850 and 1860 one Golden owned the land upon which the roadway in question is now situate. Owners of land along the river at that time received pay for banking forest products upon their land. Golden, seeing that he had a better place than some of his neighbors, commenced to build this road for his own gain. About 1865 Golden sold the land, including this roadway, to one Versaw, who continued to own it until about 1885, when he sold to one Gunther. It is now owned by several parties. Versaw, after he became the owner, completed the road. A roadway of some kind had existed there for at least 35 years before the injury. It was also conceded that the records of the township do not say anything at all about this roadway, and fail to disclose any action by the authorities concerning it. It commenced at the intersection of the Sodus and River roads, and terminated at the ferry beyond the Graham landing, and is about 900 feet in length. Its narrowest width is 7 feet, its greatest width 14 feet. The left side of the road, in going down the bluff, is principally clay. At the foot of the hill there is about a quarter of an acre of nearly level area. A shanty or boat dock is here operated by Graham. A small steamboat, called the 'May Graham,' lands there. Beyond the shanty is the ferry dock. Both docks and the ferry are private property. There has never been a railing or barrier of any kind along this roadway. At the place where plaintiff went over the embankment the roadway was wider than at any other portion, and the distance from the roadway at that point to the river was from 25 to 30 feet. On the Royalton side of the river a highway was laid out on the section line between sections 9 and 16, running to the river itself. If this were ever established by the authorities, it would appear that the last quarter of a mile of it was never in fact used by any one. The record discloses that this section line highway was properly established and worked until it reaches the 35-acre tract now owned by Frank Steimle, and that it there stops. Forty or more years ago one Polly Wood owned the Steimle place, and had logs and forest products banked on her place, for which she made a charge. Her dock or landing was called 'Polly Wood's Landing,' and is directly opposite the so-called 'King's Landing.' In order to get to her landing, people drove over her land from the public highway. No town work was ever done on the roadway running through her land to the river. Frank Steimle bought her place about 27 years ago, and the roadway through his land still exists as it did when Polly Wood owned it. No public work has been done on that roadway since Steimle owned the land. Many years before a ferry was put in there, people having milling to do used this Polly Wood roadway to get to the river, and then in the summertime took their grain across the river in boats, and had it carted up the King's Landing road, or, in the winter time, crossed on the ice. About 24 years ago one Deaner put in a ferry connecting the Steimle or Polly Wood's landing and King's landing. This ferry was operated one or two years. At the time Deaner operated this ferry a part of the roadway in question slid down, and Deaner fixed it at his own expense. About 22 years ago Steimle began operating a ferry between these two landings. In 1892 he petitioned the board of supervisors for a license to operate a ferry across the river at this point. It was granted upon condition that he 'construct and maintain all roads and approaches to the said ferry at his own expense.' Steimle, a witness for plaintiff, testified as follows: 'The reason I worked on the King's Landing road was because of this license, and also to keep the road straight, so teams could go up and down, and I could make more money with my ferry.' The owner of the land across which this road runs and those who...
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