Whitesides v. Green

• Decision Date: 13 April 1896
• Docket Number: 669
• Citation: 13 Utah 341,44 P. 1032
• Court: Utah Supreme Court
• Parties: MARION M. WHITESIDES, APPELLANT, v. GEORGE W. GREEN, SR., ET AL., RESPONDENTS

44 P. 1032

13 Utah 341

MARION M. WHITESIDES, APPELLANT, v. GEORGE W. GREEN, SR., ET AL., RESPONDENTS

No. 669

Supreme Court of Utah

April 13, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. S. A. Merritt, Judge.

Action by Marion M. Whitesides against George W. Green, Sr., and others, for damages sustained by the removal of a fence from a highway claimed by Davis county, and to enjoin defendants from interfering with the land claimed by plaintiff. From a judgment for defendant plaintiff appeals. The question in chief was whether there had been a dedication of a 3-rod road whose width plaintiff sought to narrow.

Affirmed.

Sutherland & Murphy, for appellant.

We present herewith a few considerations with respect to the contention for a dedication of a 3-rod road.

The contention is for an implied dedication. No express dedication of any character was, or could be claimed. And the implied dedication claimed must be founded upon the public user, and the owner's failure to dissent therefrom for the statutory period--for nothing else was shown or attempted to be shown.

While it is undoubtedly true that no particular formality is required for a dedication, and it may be made by the acts or acquiescence of the owner, and, in Utah at least, probably does not require an acceptance by the public authorities charged with the establishment and maintenance of highways it is nevertheless true that the essential element in all dedications, express or implied, is the owner's intention to dedicate. While it is true that this intention will be gathered from certain acts and acquiescence, and will be conclusively held to have existed even as against the land owner's subsequent repudiation and resistance, upon a principle said to be founded upon equitable estoppel, it is equally true that the intention is the ultimate thing to be sought.

"The vital principle of dedication is the intention to dedicate the animus dedicandi, and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made." Angell, Highways, sec 142; Wilson v. Hull, 7 Utah 90.

"The intent essential to a valid dedication must be to vest an easement at least in the public. Where there is nothing more than a mere license, there is no dedication. Where the use is merely permissive, with authority in the owner of the servient estate to put an end to the use at his pleasure, there is no dedication; nor in such a case are there such acts as will enable the courts to infer an intent to dedicate." * * *

"While it is true that the intent to dedicate may be inferred from facts without proof of express declarations, yet it is also true that the facts must be such as indicate an unequivocal intent to devote the strip of land to the public use." Elliott, Roads and Streets, pp. 96-7.

Where circumstances exist which negative the intent to dedicate, no dedication can be presumed.

"Where the situation of the land is such as to indicate that it does not form part of the way, although it may be alongside of the way and be used by the public, no dedication can be presumed without strong evidence of an intent on the part of the owner to dedicate the land to the use of the public."

"Where the owner makes use of the land for his own private purposes and the character of the use is inconsistent with the right of the public to the way as a street or road, the presumption of dedication will be rebutted, although the public may have used the way for travel for many years." Elliott, Roads and Streets, p. 131; Irwin v. Dixon, 9 How. 10; McCornick v. Baltimore, 45 Md. 512; Bowers v. Suffolk Co., 4 Cush. 332; Bowman v. Wickliffe, 15 B. Monroe 84; Green v. Bethen, 30 Gu. 897; Tallmadge v. East River Bank, 26 N.Y. 108; Atty.-Gen'l v. Whitney, 137 Mass. 450; Brinck v. Collier, 56 Mo. 160.

It appeared from the testimony of the witnesses that some of the recognized highways in the neighborhood were only two rods wide. Why a width of three rods should be required here while two rods is found sufficient elsewhere in the same agricultural neighborhood has not been explained.

Burrows v. Guest, 5 Utah 91, upon which so much reliance is placed by defendants, is clearly distinguishable from this case.

The principle there laid down was that: "When a highway is established by user merely over a tract of land of the usual width of a highway, or over a tract of land where, by a survey and plat which has been recognized and adopted by the owner, a street or highway of a certain width is laid out, the right of the public is not limited to the traveled part, but such user is evidence of a right in the public to use the whole tract as a highway, by widening the traveled part or otherwise as the increased travel or exigencies of the public may require."

The deed under which the owner claimed referred to a plat and survey which was made and filed 30 years prior to the alleged trespass "and had been generally acted upon and received as correct during all that time." and this showed the land in controversy as a street. Three rods of the width had been turnpiked by the county at a cost of $ 593. The use of a portion of the strip by the land owner in the planting of trees was not inconsistent with the public highway easement. C. L. sec. 2081; sec. 203.

Even under these facts the court held, not as a matter of law that a highway was shown, but that these circumstances should have been submitted to the jury.

In that case the real question was whether the public by non-user had lost what originally had undoubtedly been its own; in this case the question is whether the public by its use of a well-defined track through unenclosed fields can broaden it into a regular highway for which no trace of original grant or dedication can be found.

J. H. Wilcox and Bennett, Harkness, Howat & Bradley, for respondents.

If the contention of the plaintiff is correct, the only question for the trial court to determine was as to where the traveled track was, and when that was shown it would follow as a matter of law that the traveled track and nothing else was the road. But such is not the law.

On the trial it was a question of fact to be determined by the court as to what constituted the public highway, and he had to take into consideration, not only where the traveled track was, but many other things shown by the evidence.

In the case of Burrows v. Guest, 5 Utah 91, the court held in its opinion, commencing on page 98, that it was error for the court in that case to instruct the jury "upon the theory that the limits of a highway could not be shown to extend beyond the portion actually used and covered by the traveled track, and that the owner's continued possession and the use of a strip along the south side thereof, as before stated, was conclusive evidence against its dedication for the use of the public as a highway.'

And the court further say in the opinion, on page 98: "When a highway is established by use merely, over a tract of land of the usual width of a highway, or over a tract of land where, by a survey and plat which has been recognized and adopted by the owner, a street or highway of a certain width is laid out, the right of the public is not limited to the traveled part, but such use is evidence of a right in the public to use the whole tract as a highway, by widening the traveled part or otherwise, as the increased travel and exigencies of the public may demand."

And on page 99 the court say: "In determining the extent of the dedicatoin all the circumstances may be considered--the width of the highways in the vicinity of the land in question, the width of highways in a system in which the one in controversy forms a part. * * * It is but a matter of common understanding and experience that it is desirable and usual that streets and highways should be and are of uniform width."

And again, commencing at the bottom of page 99: "The owner of the fee has the right to use land in any way not inconsistent with the requirements of the public."

Applying the law there laid down in the case at bar we find that this road in question runs north and south, connecting at the north with a public highway running east and west, which is four rods in width, and connecting at the south end thereof with a public highway, part of which is four rods in width and the remainder six rods in width. And the uniform testimony of all the witnesses is to the effect that the...