Wakeman v. Wilbur

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

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.

Isaac H. Maynard, for appellant.

Alexander Neish, for respondents.

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 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 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, 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, however, the road was so opened, widened, and improved that thereafter it was used and traveled by the public generally with wagons and carriages, still following the old line of the sled road as originally cut out and opened through the woods on the premises now owned by the defendants. About 1869, this road, at the point in question, was changed for a distance of 10 or 12 rods through the lands now owned by the defendants, the new or substituted road being located or placed a few rods easterly of the old road. The then owner of the land, one of the defendants' grantors, consented to this change, and thereupon the road was located where it now is by the public authorities and the persons then owning the defendants' farm. It must, of course, be assumed to be the same width as the original road, namely, three rods. The referee was, therefore, warranted in finding that the locus in quo was a public highway three rods wide. He has also found that for the past 26 years this highway had been included in one of the road districts of the town, and has been in charge of overseers duly appointed; and that the inhabitants, including the defendants, have been assessed for its maintenance and repair. The evidence certainly warranted these findings. It is quite true that he has also found that at the time this action was commenced the boundaries of this road as traveled, used, and worked, had not been ascertained or determined by the commissioners of highways of the town. But the place was still a highway, although its exterior lines had not been marked out or delineated. The recording of the order, the opening of the road for use in winter, the act of the authorities in including it in one of the road...