Wicks v. Thompson

This is an appeal from a judgment entered upon the verdict of a jury and from an order upon the motion of the judge denying a new trial. The record shows that the case was submitted to the jury under a charge as favorable to the plaintiffs as they were able to ask, and upon the issue as so made a verdict was rendered for the defendant. It is, I think, perfectly clear that Joshua Wicks, when the road was laid out through the land, intended to make the west line of the road the east line of the land devised to James Wicks, the prior owner of defendant’s land. The proof shows that for the space of about 50 years the west side of the lane was the east side of said James Wicks’ land. This was a practical location, and the possession and user by each party of the land upon their respective sides of this lane must be presumptive evidence of title. I think it is also clear that when, in 1879, Selah Wicks opened Maple avenue, he intended to and did open it up to James Wicks’ land, so that, if the plaintiffs have any title as a basis for this suit, it is a varying strip, about six inches wide, upon which the fence stands. But the verdict was right, even upon this contention of the plaintiffs. It is plain that Selah Wicks made the west side of Maple avenue, which he dedicated to public use, so as to take in the whole lane as it existed at that time. It is absurd to suppose that he intended to reserve six inches on the west side of the avenue, as no good purpose can be attributed to such an intention, and his *653whole conduct afterwards refutes any such claim. His declaration at the time of opening the avenue, that he did not intend to leave any land between the avenue and the land of his brother, and afterwards advising parties to build upon the west side of the avenue, makes it incredible that he did not intend to dedicate Maple avenue up to his brother’s land. If such is the fact, then Maple avenue, for its whole length, was.a public street, and the plaintiffs had no right to erect a fence on the west side, and the same, when erected, was a nuisance, and the defendant had a right to abate it. But, assuming that the fence stood upon the land of the plaintiffs, and that Maple avenue did not include the land upon which the fence stood, we think, under the proofs, the jury were justified in finding a verdict for the defendant. The trespass consisted in a use of the land as a right of way as it had been uninterruptedly used for over 50 years. It was a use that the common owner had made before it was devised to James Wicks, and by the latter for over 40 years. We think, therefore, the defendant had a right to use the whole roadway, and to enter upon it as he and his father before him had been in the habit of doing for more than 50 years. Judgment affirmed, with costs. All concur.