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The People agt. Livingston.

highway may be established of indefinite width;

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it may be for a wagon way, it may be for a bridle path, it may be for the passage of people on foot, or for the driving of horses or cattle or sheep, whatever it may be." "Those are all the rules by which you are to score up the evidence in this case, and determine whether or not there is a highway upon this plot of ground." Excepted to by defendant. Error was committed in both propositions. (a) The defendant was indicted for obstructing a highway, forty-nine and one-half feet wide; the people were bound to prove the description as laid (See point III). If the jury scored up the evidence so as to say if a wagon way, bridle path, foot path or drive way for sheep were proven, they could convict under this indictment, the rules of law were violated. The judge mislead the jury; they were told that if they found a foot path, conviction could be had for a full highway. The defendant was not indicted for obstructing a foot path, yet the jury were told if the jury found such a path obstructed, conviction might be made. (b) The judge erred in saying that a thoroughfare might be created by the user by the public of a special section of the country. This was tantamount to an instruction, that if the people of this section alone used the road it was sufficient to constitute a public highway. (c) A permissive use by the public for any length of time of a way of access laid out by the owner to a mill or store does not prove a dedication or an acceptance. It is but a license which may be revoked at the pleasure of the owner. Nor will mere use by individual members of the community prove acceptance by the public (White agt. Bradley, 66 Me., 254). (d) There cannot be a dedication to a limited part of the public, as to a parish, and such a partial dedication will not operate as a dedication to the whole of the public (Pool agt. Huskinson, 11 M. & W., 827). (e) "If it be used exclusively by the inhabitants of the town, the presumption will be of a grant of a way to the town, which will be strictly a private way, and will not support this indictment. If it be used by the VOL. LXII 32

The People agt. Livingston.

inhabitants of the town in common with other citizens of the commonwealth, it will raise a presumption that the way is a public highway (Com. agt. Low, 3 Pick., 413). (ƒ) There cannot be a dedication to a limited part of the public (Tupper agt. Huson, 46 Wis., 646; app., 11 N. W. Rep., 244).

V. The judge should have charged, as requested, that this claimed way being a mere cul de sac the presumption was that its use was by the license and permission of the owner and not under claim of right, &c. (a) This alleged way was a mere cul de sac, it terminated at a building, the sheep pen and steep rocks, not passable to the lake. Being such "the presumption would rather be that the use of the cul de sac was by the license and permission of the owner and not under claim of right" (Holdane agt. Cold Spring, 21 N. Y., 479; see Tillman agt. People, 12 Mich., 401). It is submitted that the defense was entitled to have this principle presented to the jury.

VI. The judge erred in charging that highways might be laid out for a specific purpose; and although it passed over the land of an individual and never has been accepted by the town in any way to make it liable for its maintenance, or liable for an accident upon it, it cannot be closed. This was another of the rules the judge said might be used in "scoring up the evidence." (a) If it was a private way the town would not be liable, but if a public highway the town would be liable to maintain it and be answerable for injuries upon it, and an indictment would lie for obstructing it (State agt. Bradbury, 40 Me., 154; State agt. Richmond, 1 R. I., 49; 2 Dill. on M. C. [3d ed.], sec. 642, note "2"). (b) The jury were led to believe under this instruction that this road, given as it was for a specific purpose to a few neighbors, ripened into such a highway as authorized a conviction.

D. Cady Herrick, district-attorney, for people.

I. A highway is a public road over which all persons have full right of way, walking, riding or driving (Encyclopædia

The People agt. Livingston.

Brittanica, Doveston agt. Payne, 2 Smith's L. C., 145; 6 Wait's Act. and Def., 296; Wood's Nuisance, 229; Cook on Highways, 2).

II. A cul de sac may be a highway (People agt. Kingman, 24 N. Y., 559; People agt. Van Alstyne, 3 Keyes, 35).

III. Aside from the statute (2 R. S., 164, sec. 163; 44 Barb., 596) it had become, and was, and is, a public highway at common law (Wiggins agt. Talmadge, 11 Barb., 457; Gould agt. Glass, 19 Barb., 179; Cook agt. Harris, 61 N. Y., 448; Clements agt. Village of West Troy, 10 How. Pr., 199; Green agt. Canaan, 29 Conn., 157; Stevens agt. Nashua, 46 N. H., 192; Com. agt. Cole, 26 Penn. St., 187; Com. agt. Coupe, 128 Mass., 63; Wyman agt. State, 13 Wis., 633; Com. agt. Old Colony R. R., 14 Gray, 93; Holdane agt. Cold Spring, 23 Barb., 103; Harding agt. Jasper, 14 Cal., 642).

IV. It was properly left to the jury to determine whether there had been a dedication; it was a question of fact (State agt. Taff, 37 Conn., 392; Wood's Nuisance, 234–243; Drake agt. Rogers, 3 Hill, 604; Holt agt. Sargent, 15 Gray, 97).

V. The proper remedy is by indictment (Wood's Nuisance, 237, sec. 250; Griffith agt. McCullam, 46 Barb., 561; Com. agt. Old Colony R. R. Co., 14 Gray, 93; Wharton's Crim. Law, 1473).

VI. That the fee of the road is in an individual makes no difference; the rights of the public in it as an easement cannot be invaded, even by the owner of the fee, while it is used as a public highway (Parker agt. Van Houten, 7 Wend., 145).

VII. The charge contained a full and correct exposition of the law by which the jury should be governed in deciding the case, and the court could not be required to go further and charge abstract principles of law (People v. Cunningham, 1 Denio, 524; Moody agt. Osgood, 54 N. Y., 488; Slatterly agt. People, 58 N. Y., 354; Morehouse agt. Yeager, 71 N. Y., 594; Rexter agt. Storin, 73 N. Y., 601; Moets' case, Ct. of App. MS.).

The People agt. Livingston.

LEARNED, P. J.-The defendant's wife, without dispute, is the owner of the land in question, and he acting for her erected the alleged obstructions. He was indicted not only for erecting but for continuing these obstructions to an alleged highway, and the jury have found him guilty, as charged in the indictment, on such a verdict, the judgment is that defendant at his own cost abate the nuisance within a certain time, and in default thereof that process issue to the sheriff commanding him to abate the nuisance at the defendant's cost (Muson agt. People, 5 Park. Crim. R., 16; 2 Whar. Crim. L., sec. 2377). Because the verdict of the jury has found the defendant guilty of continuing the nuisance, therefore the court on this verdict may adjudge that the defendant abate a nuisance on property, which it is admitted does not belong to him, and if he fails to do this then the court may direct the sheriff to abate a nuisance on property of a person, viz., Mrs. Livingston, who has never been heard as to her right to maintain the structure and who is not a party.

I do not mean that a person who erects a nuisance cannot be convicted of that act and fined. Possibly (although I express no opinion on this) the jury in this case might have rendered a verdict of guilty of erecting but not of continuing. But the fact is, that the jury have convicted the defendant of continuing as well as of erecting the nuisance, while, as it is shown that the defendant is not the owner, he cannot, in my opinion, be convicted at least on this proof of continuing. If Mrs. Livingston were the successor to the defendant she would be liable for the continuance of the alleged nuisance (Brown agt. Cayuga R. R. Co., 12 N. Y., 476). This defendant would not be liable unless he derived some benefit, as by demising the premises and receiving rent, or by conveying with covenants for the continuance of the nuisance (Mayor agt. Cunliff, 2 N. Y., 174; House agt. Corning, 1 Lansing, 288). Much less would the defendant be liable for the continuance if Mrs. Livingston was not his successor, and if he had erected the nuisance only as her agent.

The People agt. Livingston.

It may be said that it is not necessary that the court should adjudge that the defendant abate the nuisance and that the court may merely impose a fine; but I do not think that a verdict can stand which finds the defendant guilty of continuing a nuisance he does not continue, and which exposes him to a judgment which he cannot perform.

There are perhaps other reasons why this conviction should be reversed, but I deem this sufficient.

It should be said in justice to the learned judge who tried this case, that his attention was not in any way called to the point above suggested, and that he could not be expected to notice it, as he very probably did not see the indictment.

The conviction should be reversed and a new trial granted.

LANDON, J.-I advise the reversal of this conviction upon the ground that the evidence entirely fails to show that the locus in quo was a public highway, and it was therefore the duty of the court to direct an acquittal (People agt. Bennett, 49 N. Y., 139).

Fifty years ago the owner of the lot told some of his neighbors that if they would help him build a stone wall from the main road to the lake, they could drive their sheep to the lake and wash them there; they helped him build the wall and since then these persons and their successors, as they had occasion, drove their sheep across this lot which adjoined the Knox road on one side and the lake on the other, to an inclosure upon the lake shore and there washed them. As this lot was unfenced along the Knox road the public in passing to and from the lake crossed it where it was most convenient. Picnic parties, fishermen and others crossed over it to and from the lake. In the winter ice was drawn from the lake across it, and sometimes when the lake was frozen teams were driven across it to and from the lake.

There is no regular traveled road across the lot, and the evidence is that when people crossed it they did so in different places. The sheep, it is true, made a beaten path from the

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