William Penquite v. Jonathan Lawrence, Supervisor of Road District No. 1, Vernon township, Clinton county.
A mere silent acquiescence of the owner of land, in the use of a public road across it, for any period less than twenty-one years, is not conclusive proof of a dedication thereof to public uses, but only evidence, more or less significant, tending to prove such dedication. Such uninterrupted use for the period of nine years, coupled with other circumstances indicating an intention on the part of the owner to dedicate it, may, if satisfactory to the jury, warrant it in finding such dedication; but does not, in and of itself, justify the court in assuming the fact of a dedication.
Reserved in the district court of Clinton county.
This is a petition in error filed in the district court of Clinton county, to reverse a judgment rendered in the court of common pleas of said county against the plaintiff in error for nominal damages and costs of suit, in an action prosecuted in that court by the defendant in error, to recover damages against the plaintiff in error, for obstructing a county road within said road district, by building a fence so as to inclose eight feet thereof, to the hindrance and obstruction of persons using the road.
The only error assigned is that the court erred in its charge to the jury.
It appears, from the bill of exceptions, that the plaintiff below offered evidence tending to prove that some time prior to 1846, an order had been issued to the supervisor of said road district No. 1, directing him to open a county road, forty feet wide, along the original line of survey No. 2226, to a stake in the Columbus State road, where said original line crosses the same. That beside said original line of the road, there was a line called the “ new line,” running at an angle with said original line, and some ten or twelve feet distant from it at the place of defendant’s fence. That in April, 1846, the road on the new line was opened, marked and located, and has ever since been used and worked as a public highway. That the land of defendant along said road was woodland, and uninclosed until the building of his fence in *2751855, but that the land on the opposite side, was fenced up to the line of the new road. That the fence built by defendant, in 1855, encroached upon the lines of the new road some eight or ten feet, leaving it only thirty or thirty-two feet wide; but that his fence was entirely without the lines of the road, if located according to the original orders, and that said fence was an inconvenience and obstruction to persons using the road as now located.
Whereupon the court charged the jury as follows:
“ If the jury find, from the evidence, that the road in controversy was marked out, located, and in the month of Aprilj 1846, opened by the supervisor, under the order issued for that purpose, and from that time was used as a public highway, up to May, 1855, when the defendant is alleged to have moved out his fence, and if the jury further find that the defendant removed his fence out into, and obstructed the road (which had been so laid out, opened, and used), to the hindrance and inconvenience of persons using said road, the plaintiff will be entitled to recover, although the road, as actually marked, located, opened and used, as aforesaid, may be as much as ten or eleven feet farther on defendant’s land, at the point of obstruction, than it would have been if laid out, opened, and used on the original line of survey, No. 2226.”
To which charge of the court the defendant excepted, and the questions arising thereon were reserved by the district court for decision here.
West, White, & Blain, for- plaintiff in error.
A. W. & R. E. Doan, for defendant in error.
Peck, J.
It is assumed, in the charge excepted to, that the county road, denominated in the bill of exceptions as “ the new line,” though marked, located, and opened by the supervisor in 1846, had never been established as a public highway, in pursuance of the statute, and that it had been laid out,- used, and worked as a public highway, for a period of only nine years prior to its obstruction by the defendant. *276The court, thereupon, charged the jury, that if they should' find that it had been laid out, worked and used for that period, and that the fence of the defendant obstructed the road, to the hindrance and inconvenience of persons using it, the plaintiff was entitled to recover, even though the defendant’s fence was entirely without the lines of the road, as it was established upon the line of survey No. 2226.
It appears, from the bill of exceptions, that, during all this period, the land of the defendant bordering upon the road, was woodland, and uninclosed; and no affirmative act, on the part of the defendant, is shown, indicating an intention to dedicate the road to public uses. The charge of the court, therefore, raises the question whether a mere silent acquiescence of the owner, in the public use of a road across his uninclosed land, for a period of only nine years, constitutes, in law, a permanent dedication of the ground occupied by it, to public use. It is not pretended that there was any statutory dedication, either by the defendant or the public, and, therefore, the dedication, if any, was a common law dedication, which depends for its validity, upon the real or presumed in tention of the owner, and where there is no express grant, operates by way of an estoppel in pais of the owner. There must be an intention to dedicate, and the general rule is, that without some clear manifestation of such intention on the part of the owner, a dedication will not be conclusively presumed, until the lapse of a period sufficient to create a bar to an action to recover possession of real estate; but where the intention to dedicate is not clear and unequivocal, a jury may nevertheless, presume a dedication from circumstances indicating such intention, coupled with an uninterrupted user by the public, for a much less period of time.
If the court in this case had charged the jury, that the uninterrupted use of the road by the public, coupled with circumstances fairly indicating an intention on the part of the defendant, to dedicate it, if any such were in evidence, were facts and circumstances from which, if sufficiently significant, they might presume such dedication, the charge would not have been erroneous; but the court charged the jury, sub*277stantially, that such user was, as a matter of law, a dedication, and not mere evidence of a dedication to be weighed and considered by them; and in this we think there was manifest error.
Judgment reversed and cause remanded.
Brinkerhoee, C.J., and Scott, Sutliee, and Gholson, JJ., concurred.