White v. Bradley

• Decision Date: 28 December 1876
• Parties: CHARLES A. WHITE et al. v. ABIUD BRADLEY. 1875.
• Court: Maine Supreme Court

66 Me. 254

CHARLES A. WHITE et al. v. ABIUD BRADLEY.

1875.

Supreme Judicial Court of Maine.

December 28, 1876

ON EXCEPTIONS.

CASE for obstructing a public way.

The substance of the testimony bearing upon the legal points raised, appears in the opinion.

L Clay, for the plaintiffs.

J Baker & H. S., Webster, for the defendant.

BARROWS J.

The plaintiffs claim damages in a special action on the case against the defendant, because they say he has excavated the soil and deposited a large quantity of stone and large blocks of granite upon a lot of land lying westerly of a brick block owned by them on Water street in Gardiner, over which lot they claim a right of way.

The defendant justifies the acts complained of as owner of the lot, denying the plaintiffs' alleged right.

The plaintiffs assert that their claim is maintained by the testimony, upon the ground that it proves, 1st, that the lot claimed and used by the defendant as his own, is a public way, or street established by Robert H. Gardiner, the former owner by dedication; or 2d, that they and others owning buildings on that side of Water street, there, have such right of way by necessity; or 3d, that the plaintiffs have an easement in the lot claimed by defendant for light and air by grant and necessity, which was injuriously affected by the defendant's acts.

After the plaintiffs had produced the testimony on which they relied to maintain their action, the defendant produced and put in, subject to objection, the records of the city of Gardiner, showing that the city government in 1866, laid out a street over this lot, discontinued it in 1867, again laid it out in 1871, and a second time discontinued it in 1872.

The defendant put in his deed of the lot in question from the trustees of the estate of the late R. H. Gardiner; and plaintiffs admitted their authority under Mr. Gardiner's will to convey. Hereupon the presiding judge ruled as matter of law, that the action could not be maintained; and the case is reported to this court with the stipulation that if this ruling is not correct, or if the jury would be authorized to find for the plaintiffs upon the evidence produced, the case is to stand for trial; otherwise a nonsuit is to be entered.

As the case is presented, a question sometimes raised as to the propriety of a peremptory ruling that the action cannot be maintained after evidence has been introduced in defense, seems to be waived.

The stipulation in the report seems designed to present rather the question whether a verdict for the plaintiff could be sustained upon the evidence reported, than any mere question as to the regularity of the proceeding, as a matter of practice. This is the question always presented where a nonsuit is ordered. Fickett v. Swift, 41 Me. 65.

But were the case before us upon exceptions to the ordering of a nonsuit, we should not hesitate to declare that the later and better doctrine and practice are in favor of the course taken by the presiding judge viewed merely as a question of practice; i. e., if, upon the unquestioned facts and the uncontroverted testimony introduced, by which party soever it is offered, it is apparent that the plaintiffs' action cannot be maintained, it is competent for the presiding judge so to declare in the form of a ruling, the correctness of which may be tested upon exceptions, or upon report in the present form. Cooper v. Waldron, 50 Me. 80. Cutting, J., in Bragdon v. Appleton Ins. Co., 42 Me. 259, p. 267, et seq. And this, although there may be some evidence to support the plaintiffs' claim, if it is not sufficient to justify the jury in finding the issue in his favor. Beaulieu v. Portland Co., 48 Me. 291.

Some questions are made as to the sufficiency of the declaration in the writ to warrant the introduction of proof of the existence of a public way by dedication over the lot, or of special damage suffered by reason of the obstruction of a public way, questions which would merit a careful examination, if there were not insuperable objections to the maintenance of the action on the evidence here reported, however accurate and appropriate the declaration might have been.

Assuming that the declaration well sets forth the grounds upon which the plaintiffs claim to recover, let us see whether that claim is maintained by the testimony.

Touching the right in the public by dedication and acceptance, which is the ground chiefly relied on, the case shows that across the lot in question, and across other land of the same proprietor, adjacent thereto, there was for a series of years, during the lifetime of the late R. H. Gardiner, a way leading to a mill owned by him and occupied by his tenants. Prior to 1850-51, this road to the mill, in place of leaving Water street where it now does, traversed that part of Mr. Gardiner's land, which is now covered by what is called by the witnesses the post office building. On the lot in question was what is called the " hay barn," a row of wooden stores on Water street, covering the site of the plaintiffs' store, and this passage way. There is no pretense that at this time the use of the passage way was anything but permissive.

The plaintiffs' position is, that a dedication took place, when in 1850-51, the course of the road to the mill was changed by Mr. Gardiner, and two stores erected at a distance of about forty feet from each other, the space between, (which includes the lot since conveyed by the trustees of his estate to the defendant,) being apparently appropriated to furnish a way to the mill in lieu of the more devious track formerly leading to it from Water street. These stores, which seem to have been intended by Mr. Gardiner, as gifts to two of his sons, were finished with doors and windows opening upon this lot, through which there has been a passage way to the mill and to the rear of the stores.

Other store lots on the same side of Water street in that vicinity, previously conveyed by Mr. Gardiner, were bounded in the rear, upon a fifteen foot passage way, to which there was access from this mill road. Many witnesses are called to declarations of the elder Gardiner, about this time in relation to this road. It is worthy of note that nearly all of them speak of what he said of his expectations and of his intentions in certain contingencies. Some of the expressions seem to import an opinion on his part, that there would always be a way of access to the mill there; but there is very little, if anything, that could be construed as implying a present intention to give the public a right there, or to have the way used for anything except for the convenience of his own property and tenants.

One of the witnesses, an intelligent business man, at one time mayor of the city, at this time had bought the mill building, and hired the land and water privilege of Mr. Gardiner, under a lease. He testifies that when Mr. Gardiner told him of his intention to put up a building where the mill road then existed, he objected, and Mr. Gardiner said that he was going to open a new road farther down, which he thought would accommodate the witness, (his tenant,) equally well, and be of advantage to him by stopping parties from hauling logs out of the pond, so that the witness would get the use of the whole pond, to which it would seem that the old road gave access. Witness asked Mr. Gardiner why he did not build the buildings together, and let the road remain where it was; and Mr. Gardiner said he did not think that was a suitable place for a permanent road. Now this obviously relates to a road to the mill which Mr. Gardiner, as proprietor of the site and privilege had a right, except so far as he was under obligation to his lessees, to open or shut, or do away with altogether at his pleasure.

A proprietor of real estate has an unquestionable right to devote any portion of his property for such a series of years as seems good to himself, to some use which shall invite trade and custom from the community at large, and to permit them to use some portion of his land as a way of access during such period of time, but that use confers no right upon the public, or the individuals accustomed to use such way. It is permissive, merely, and for the benefit of the proprietor and his tenants; and does not amount to a dedication. The proprietor may when he pleases, devote his estate to some other use, or no use at all, and shut up the way in which he has permitted people to pass on his land, and nobody will have a legal right to complain. A dedication to public use takes its effect from the intention of the person making it; and merely opening or widening a street, for the convenience, benefit or profit of the person doing it on his own land, will not constitute a dedication. Gowen v. Philadelphia Exchange Co., 5 Watts & S. 141. Morse v. Ranno, 32 Vt. 600.

But a use which is simply permissive, however long continued, or the opening of a way as a private way, and subsequent use of it as such, whatever the length of such use by others, will not make it a public way, nor does it amount to proof of a dedication. Mayberry v. Standish, 56 Me. 342. Hall v. McLeod, 2 Met. (Ky.) 98.

" A permissive use of a way by certain portions of the community, constitutes a license, and not a dedication, and is ordinarily something that may be revoked." Washburn on Easements, pp. 190, 191. Everything in such cases depends upon the intention of the party whose dedication is claimed, and upon the character of the permission given and the use allowed. Stafford v. Coyney, 7 Barn. & Cres. 257. Barraclough v. Johnson, 8 Ad. & E. 99.

And this intention must be unequivocally and satisfactorily proved. Washburn on Easements, p. 186, 3d ed.

It follows that declarations which apply as well...