The People agt. Livingston. guilty as charged in the indictment; a stay of proceedings was allowed and an appeal taken to this court. Edward J. Meegan, for defendant. I. No indictment will lie for obstructing a private way or easement or a road in which a neighborhood is interested. It must be a common public highway in which the public, in their aggregate capacity, have a common interest as distinguished from mere individual or private right (The People agt. Jackson, 6 Mich., 432; U. S. agt. Schwarz, 4 Cranch C. C., 160; U. S. agt. Emery, 4 id., 270; Selby agt. Crystal Pal. Dis. Gas Co., 31 Law Jour. [Ch., N. S.], 595; 2 Bish. on Crim. Law [7th ed.], sec. 1266). (a) "No indictment lies for a nuisance unless the offense be to the public generally as distinguished from a special and limited class of persons (2 Whart. on Crim. Law [7th ed.], sec. 2414). (b) An alley is not a public highway so that an indictment will lie for obstructing it (Bagley agt. People, 5 N. W. R., 415 [bottom page]; Hemingway agt. Chicago, 60 Ill., 324). (c) As illustrating the point urged here the rule of pleading is that the indictment must allege to the common nuisance of all the citizens and not divers citizens (1 Bish. on Crim. Law [7th ed.], secs. 352, 353). (d) The undisputed evidence is that some fifty years ago a license was given to a few neighbors to travel over this common to reach sheep in a pen to be erected. No route was specified at the time, nor does one seem ever afterwards to be uniformly followed. This license was a mere private personal privilege in which the public at large had no interest or concern (Wood agt. Hurd, 34 N. J. L., 87). (e) Some very respectable authorities hold that no indictment will lie for obstructing a highway unless, in addition to the dedication, there also be an express acceptance by the authori ties (Wood on Nuis., 229, sec. 235; Hawkins' Pleas of the Crown, 367, sec. 3; U. S. agt. King, 1 Cranch C. C., 444; State agt. Joyce, 19 Wis., 90). II. The statute (2 R. S. [6th ed.], 164, sec. 163) which The People agt. Livingston. makes a twenty years' user of a road sufficient to constitute a highway requires it to be used as a public highway for that term. It provides, "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." Unless, therefore, this route was used by the public as a public highway it does not fall within the provisions of this statute. (a) "Highway" is defined as "a road free to the public, a passage open to all persons" (1 Abb. Dict., 562). (b) To constitute a highway it must at least be of public utility if not of necessity (Wetter agt. Harvey, 1 McCord, 67). (c) It requires stronger proof to establish a country road than a street in the city (27 Am. Dec., 563, n; Badeau agt. Mead, 14 Barb., 328). Much stronger evidence of a dedication by the owner or prescriptive right by the public will be required to establish the existence of a neighborhood, local or timber road, than of a thoroughfare or part of an acknowledged highway between towns, or leading to a town, and as such constantly traveled (Onstott agt. Murray, 22 Iowa, 457; Harding agt. Jasper, 14 Cal., 642). (d) The inception of the right to travel being shown it must be presumed to continue in the same way (37 N. Y., 637). It is submitted that the undisputed evidence establishes no user by the public of this way. Most of it was impassable for teams or wagons, and it terminated at a sheep pen and high rocks overlooking the lake, and for fully two-thirds of its length, it was used only in the spring of each year for the purpose of driving sheep to the sheep pen. (e) To constitute a highway the way must be one over which all the people of the state have a common and an equal right to travel, or at least a general interest to keep unobstructed (People agt. Jackson, 7 Mich., 432). The mere fact that a highway has been laid out is not sufficient; there must be an existing thoroughfare, suitable for travel (Beckwith agt. Whalen, 70 N. Y., 430). Where a way is opened as a private passway, and that fact clearly appears, it cannot be converted into a public highway by the mere use thereof, no The People agt. Livingston. matter how long that use may be continued (Hall agt. McLeod, 2 Metc. [Ky.], 98). * There must be certainty of * * limits and direction in laying out (Hice agt. Fish, 4 Mass. [C. C], 310; Briggs agt. Guilford, 8 Vt., 270; 6 Wait's Act and Def., 296). (f) A road a mile long, and from ten to fifteen feet wide, leading from a public highway to a church, and used by the people of the neighborhood for sixty years in going to and from the church, and which connected with a country road leading to a mill in the neighborhood, and to a railroad station, but which had never been under the charge of an overseer nor worked as a public highway, is not a public highway, so as to subject one to indictment for obstructing it (State agt. McDaniel, 8 Jones L. [N. C.], 284). (9) The case of The State agt. Nudd (23 N H. [3 Foster], 327) is substantially on all fours with the case at bar and justifies a full quotation: "Where the alleged highway was described as being between the lands of N. and the beach of the Atlantic ocean, on the northerly side of H. and extending to the easterly point of H., and the evidence tended to show that a number of teams, more or less, passed along the alleged way, some of them going to the point of H., and in two or three instances around it, for the purpose of gathering rock weed principally, but sometimes sea weed and drift wood, and that this occurred every year for more than twenty consecutive years, mostly in fall and winter; that wheel ruts were distinguishable along the westerly end of the way for a good portion of the time, but were sometimes covered up with the sand, and that towards the point the bank in some places was washed away from year to year, and the travel accordingly changed, keeping as near the bank as possible; but it did not appear that the way was ever laid out as a highway, or fenced or repaired, nor that the town in which it was situated had ever done any act to recognize it. Held, that the evidence was insufficient to establish a public highway" (2 Smith's Leading Cases [7th Am. ed.], 156; Barker v. Clark, 4 N. H. R., 383; Woodyear agt. Hadden, 5 Taun., 126). (h) There The People agt. Livingston. was no dedication of a public highway here. The original Secor said to a few of his neighbors if you put up a stone wall and erect a sheep pen you may use this land for the purpose of driving your sheep to the lake to be washed. There was certainly no intention shown here to present this land to the public (Wood agt. Hurd, 34 N. J. L., 87). The numerous cases cited in note to 27 American Decisions, 562, establish: 1. The intention to devote to the public use must be clear, positive and unequivocal. 2. The acts and declarations must be unmistakable in their purpose and decisive in its character. In Morse v. Rano (32 Vt., 600) it was held that omission to fence is no evidence of an intent to dedicate. (i) Secor granted a mere license for a special purpose. A different use adversely to the owner is not shown by the general user of the entire common. "Water which squanders itself over an indefinite surface is not a water-course, nor a proper subjectmatter for the acquisition of a right of user" (Wood's Land. and Tenant, sec. 253, p. 398, and cases there cited). Although travel may slightly deviate from the thread of the road, yet the time in which various distinct lines of travel to a certain point have been used cannot be united so as to make up the requisite time to establish a prescriptive right to any given line of the road (Gentleman agt. Soule, 32 Ill., 271). (j) Suppose a person had been injured scrambling over this rocky way and an action was brought, under the recent statute (chap. 700, Laws of 1881), to recover against the town for damages, would this court uphold a verdict against the town? And yet if it is a public highway the town would be bound to repair it and be answerable in damages for injuries occasioned by their negligence (Mayberry agt. Standish, 56 Me., 342). "If it was a public highway the responsibility for its proper repairs and support was upon the public" (Niagara Falls Susp. B. Co. agt. Bachman, 66 N. Y., 267). III. The highway must be proved as set forth in the indictment (Martin agt. People 23 Ill., 395; Roscoe's Crim. Evi., (a) In ejectment, description must be proved as laid 539). The People agt. Livingston. substantially (Tyler on Ejectment, 474). (b) "When no dimensions of a way are defined, but the purposes of it are expressed, the dimensions will be held sufficient for the accomplishment of that object." (Wash. on Ease. [1st ed.], 188). (c) "If the defendant's only title was by user, its successor can claim no more than the way actually used and occupied by it" (Gen. term, 3d Dept.; Morey agt. West Troy, 12 N. Y. Weekly Dig., 56; Mem. in 24 Hun, 141; Eples agt. Neman, 5 Ind., 459). (d) The road claimed by the people, as indicated by a path, was but a short distance from the stone wall-in some places ten and in other places twenty feet under these circumstances how can a roadway forty-nine and a-half feet be claimed? There was no evidence whatever upon which to base the pretension of a road as wide as that charged in the indictment. (e) Another view that should be well considered by the court is, the nature of the judgment that may be entered on this verdict. The indictment contains the necessary allegations to bring it within the following quotation. Independently of judgment of fine and imprisonment there may be, when the offense is continuous and there is a continuando in the indictment, a judgment by the court that the nuisance abate. But for this purpose a continuando is essential. The usual course is to order the abatement, and if the defendant neglect or refuse to obey, to direct an abatement by the sheriff" (2 Whart. Crim. Law [7th ed.], sec. 2377; 2 Whart. Prac. and Pleas. [4th ed.], 674, note a; R. agt. Stead, 8 T. R., 142; Code of Crim. Pro., sec. 953). fore on the proof of a mere pathway at the most twenty feet wide--the process of the court can be issued to clear off forty-nine and one-half feet of land. There is no evidence to warrant finding a roadway so wide. 66 There - ten to IV. The judge charged the jury: "If the owner of the soil himself opens up the thoroughfare, and it continues to be used by the public for their purposes in connection with that special section of the country for the space of twenty years, it then becomes a public thoroughfare. * Such a * |