Strong v. Makeever

• Decision Date: 17 November 1885
• Docket Number: 11,671
• Citation: 4 N.E. 11,102 Ind. 578
• Parties: Strong, Trustee, v. Makeever et al
• Court: Indiana Supreme Court

4 N.E. 11

102 Ind. 578

Strong, Trustee, v. Makeever et al

No. 11,671

Supreme Court of Indiana

November 17, 1885

Original Opinion of June 10, 1885, Reported at: 102 Ind. 578.

OPINION

Zollars, J.

As stated in the principal opinion, this proceeding is based upon section 5035, R. S. 1881, which provides that "All public highways which have been or may hereafter be used as such for twenty years or more shall be deemed public highways; and the board of county commissioners shall have power to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as have been used for twenty years but not recorded, to be ascertained, described, and entered of record." In that opinion we said: "By the explicit and positive terms of the statute, that (twenty years') use made the road a public highway. Under this statute, it is the twenty years' use that makes the road a public highway, and it is immaterial whether the use is with the consent, or over the objections, of the adjoining land-owners. * * * With the expiration of the twenty years' use, as in this case, the statute intervenes and declares the road to be a public highway regardless of its origin, or the mere objections by the land-owners. The statute does not affect a remedy merely but establishes a right." These portions of the opinion are vigorously assailed by appellees' counsel. If, in this assault, the logic were as vigorous as some of the statements, we might well hesitate before overruling the petition for a rehearing. Counsel's interpretation of the statute is shown by the following from their brief: "The statute does not say nor mean that the use of land for twenty years authorizes that land to be described of record as a public highway. The statute contemplates the creation of a public highway by consent of the land-owners either by an imperfect record, made perfect by opening and actual use with full knowledge of the land-owners' rights, or a highway by dedication, used as such for twenty years."

Paraphrased and abridged, this interpretation amounts to this, if, with the knowledge and consent of the land-owner, a way has become a public highway, by either of the modes named, then, if used as such for twenty years, it shall be deemed a public highway. Such an interpretation, in our judgment, would render the statute utterly meaningless and nugatory.

The difficulty with counsel's position is that the establishment of public highways by proceedings before the county board, and by dedication, is confounded with the establishment of such highways by the twenty years' use under the statute. The words "public highways," as first used in the statute, have more especial reference to highways established by proceedings before the county board. As applied to highways as established by twenty years' use, the meaning of those words would have been better expressed by the word "way" or "road."

In that portion of the section in relation to making the record, it is provided that such roads, etc., used as public highways for twenty years, shall be ascertained and recorded; thus showing that "public highways" as used in the first part of the section mean roads, or travelled ways, and not public highways in the full legal sense. All of the provisions of the section of the statute taken together mean, and can only mean, that a way or a strip of land, used as a public highway for twenty years, shall be deemed and become a public highway. This use is to make that a public highway which, but for such use, would not, and could not, be deemed a public highway. If, without and independent of such use, the way is a public highway by dedication or otherwise, then the twenty years' use under the statute amounts to nothing, and the statute is a useless enactment. A way may become a public highway by dedication, express or implied, in much less time than twenty years. It was said in the case of State v. Hill, 10 Ind. 219, that four or five years' unopposed use of a way by the public may be sufficient to raise the presumption of a dedication.

It is said in argument, that if such twenty years' use may establish a public highway without regard to the consent of the land-owner, it will result that highways may be thus established over the lands of persons under legal disability, such as infants, etc., and that a construction of the statute should not be adopted that might bring about such a result. What would be the result of such use, if the way were over the lands of persons who, during the entire twenty years were under legal disability, is a question not now before us for definite and final decision. We may state, however, that such persons are bound by statutes of limitation and like statutes, unless they are excepted from their operation. And hence it is, that, in almost every instance, they are excepted from the operation of all such and similar statutes. That is so in most if not all the States, and it is so in this State. See, for example, R. S. 1881, sections 296, 615, 901, 2403, 6467.

Under a statute in New York, which provided that "all roads not recorded which have been or shall have been used as public highways for twenty years or more shall be deemed public highways," it was said, in the case of Davenpeck v. Lambert, 44 Barb. 596: "That is to say, shall be judged or held to be public highways from the mere fact that they have been used as such for twenty years or more. I agree that if no statute were in the way, the intention of the owner of the land on which the road exists, would control the question whether it had been dedicated to the public for a highway. * * But the mere intention of the owner of the land is not material under the statute referred to. The uninterrupted use of the land as a public highway for twenty years alone, according to the statute, constitutes it such a highway. Such a user of land for that period makes it a public highway under the statute, though the owner be a lunatic, an infant or a married woman, and has no knowledge thereof during the entire time. I think such is the obvious meaning of the statute, and that it must be so construed, for the reason that there is no exception in it saving the rights of persons incapable of consenting or who do not consent to the use of their land for a highway."

Under a statute similar in its nature, in that it provided that all streets, roads and alleys within a named village, which have been worked and improved by the trustees of the village, or the commissioners of highways of the village, and are now used as such, shall be deemed public highways, it was said, in the case of Hickok v. Trustees, etc., 41 Barb. 130: "This was a special legislative enactment that all the streets, roads and alleys in that village should be thenceforth public highways, if brought by this act within certain conditions. It is therefore really unimportant, under the special provisions of this statute, to enter upon an inquiry as to what constitutes a highway at common law. * * * The very fact that this special statute provides that those streets, roads and alleys should be deemed highways, in case they came within the terms of the act, implies and presupposes that at least some of them, by reason of not being laid out in compliance with the statute, and their having been of less than twenty years' use, were not then public highways. * * The character of these streets, roads and alleys is to be determined, not as is urged by discussing the common law or general statute provisions, but by inquiring simply whether as a matter of fact, any particular street or alley comes within the special provisions of the fourth section of the act of 1848."

So, in the case before us, the inquiry is not whether the road has become a public highway under common law rules, by dedication express, or with the knowledge and consent of the land-owners, but whether as a matter of fact it has been used as a public highway for twenty years, and thus become a public highway under the statute. And so, under a statute like that under discussion, it was said, in the case of People, ex rel., v. Judges, etc., 24 Wend. 491: "This provision does not authorize the commissioners to say what was 'originally intended,' either by the owner of the soil or any one else, in relation to the width or location of the...