Wakeman v. Wilbur

• Court: New York Court of Appeals
• Writing for the Court: O'BRIEN
• Citation: 147 N.Y. 657,42 N.E. 341
• Decision Date: 10 December 1895
• Parties: WAKEMAN v. WILBUR et al.

147 N.Y. 657
42 N.E. 341

WAKEMAN
v.
WILBUR et al.

Court of Appeals of New York.

Dec. 10, 1895.

Appeal from supreme court, general term, Fourth department.

Action by Abijah S. Wakeman against Sylvia A. Wilbur and others to compel defendants to remove an obstruction from a highway. From a judgment of the general term (4 N. Y. Supp. 938) reversing a judgment in favor of plaintiff, he appeals. Reversed.

[147 N.Y. 658]Isaac H. Maynard, for appellant.

147 N.Y. 659]Alexander Neish, for respondents.
[147 N.Y. 660]O'BRIEN, J.

The court below has reversed a judgment recovered by the plaintiff on the report of a referee. It does not appear from the order that the reversal was upon the facts, and we must, therefore, assume that it was upon some question [147 N.Y. 661]of law. The action was brought to compel the defendants to remove obstructions from a public highway, and for damages which it was alleged that the plaintiff had sustained in consequence of the unlawful obstruction. It was claimed that the invasion of the highway by the defendants amounted to a public nuisance, and that the plaintiff, by reason thereof, had suffered such special and particular damage and injury as enabled him to bring and maintain the action in his own name. The facts found by the referee sustain the judgment, and the only question for this court to consider is whether any of them are without any sufficient basis in the proofs, and whether any of the exceptions taken were of such a character as to require a reversal of the judgment. The important facts found are: First, that the defendants did place obstructions in a public highway; and, secondly, that this unlawful act resulted in damages to the plaintiff, special and peculiar to him, and not of a character common to the whole public. It appeared that on the 27th day of June, 1851, the commissioners of highways of the town laid out the road in question by an order, signed by two of them, in which the center line of the road, to be three rods in width, is described by courses, distances, and monuments. This order was duly recorded as required by law, and recites the fact that it was made at a meeting of all the commissioners called for that purpose, and after full deliberation, and with the consent of the property owners

[42 N.E. 342

through whose lands the road passed. It further appeared that the road was thereafter included by the public authorities in one of the road districts of the town. The road at the point in question was laid out through a forest, and for some years afterwards it was opened and used only for the purpose of drawing loads upon sleds in the winter, or the passage of sleighs. The road, as opened at the point in question, did not follow the survey indicated in the order in all respects, but there were deviations therefrom. The limited use of the place as a highway for some years thereafter was sufficient to give to it the character of a public road. It was a place over which the public had the right to pass and repass, [147 N.Y. 662]and the fact that it was not sufficiently improved for some time to permit the passage of wagons or carriages upon wheels did not affect the public right. About 10 years afterwards,...