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decided: January 7, 1901.



Author: Mckenna

[ 180 U.S. Page 93]

 MR. JUSTICE McKENNA delivered the opinion of the court.

This is an action for damages which was brought by Conway Robinson against the District of Columbia, for certain alleged trespasses on his land called the "Vineyard." The trespasses consisted in breaking and entering his close and digging trench 386 feet long, 33 feet wide and 14 feet deep, and carrying away 4683 cubic yards of gravel. The grounds of action were presented in several counts. The District pleaded the general issue and the statute of limitations. The plaintiff joined issue on the first plea, and demurred to the second. No disposition was made of the demurrer until February 18, 1884, when the death of the plaintiff was suggested.

On the 29th of October, 1886, the defendants in error, executors

[ 180 U.S. Page 94]

     of Conway Robinson, filed an amended declaration, presenting the cause of action in three counts. The first alleged the taking of the gravel from Harewood road; the second, its taking and using upon other roads; the third, the breaking and entering the close; the fourth, the breaking and entering the close, and the excavation of a trench, thereby separating parts of the close from other parts and impairing its value as suburban property.

On December 30, 1896, the District pleaded the general issue to the amended declaration. Issue was joined on the plea. Subsequently, by leave of the court, the District filed additional pleas. First, the statute of limitations of three years; second, liberum tenementum; third, that the trespasses complained of consisted in the excavation and removal of gravel and soil from within the lines of a public highway known as Harewood road. Upon motion the first plea was stricken out and a demurrer was sustained to the second. The case was tried on the general issue and the third plea.

A verdict was rendered for the plaintiffs (defendants in error) in the sum of $8000, and a judgment was duly entered thereon. It was affirmed by the Court of Appeals, 14 D.C. App. 512, and the case was then brought here.

The errors assigned are on exceptions taken to the giving, refusing and modifying instructions. It is not necessary to detail the testimony. It is enough to say that it tended to support the issues by the parties respectively, and to support the claim that Harewood road was a public highway. For the latter the District relied upon prescription and dedication arising from twenty years' use by the public, and also upon the action of the levy court in relation to the road.

For the statutes in regard to the levy court and its functions we may quote from the opinion of the Court of Appeals as follows:

"The law of Maryland in force at the time of the cession of the District declared that the county courts 'shall set down and ascertain in their records, once every year, what are the public roads of their respective counties.' Act 1704, ch. 21, sec. 3.

[ 180 U.S. Page 95]

     "The act of Congress, July 1, 1812, empowered the levy court to lay out public roads, condemn lands therefor, and so forth, and provided that when a road shall have been so established, marked and opened they shall return the courses, bounds and plat thereof to the clerk of the county to be by him recorded, and it shall thereafter be taken, held and adjudged to be a public road. 2 Stat. 771.

"Section 2 of the act of May 3, 1862, declares that all roads which have been used by the public for a period of twenty-five years or more as a highway, and have been recognized by the levy court as public county roads, and for the repairs of which the levy court has appropriated and expended money, shall be public highways whether they have been recorded or not. Section 3 provides that within one year from its passage, the levy court shall cause the county surveyor to survey and plat all such roads and have the same recorded. In making the survey he was required to follow as near as possible the boundaries heretofore used and known for the highway and to mark the same at all angles with stones or posts. 12 Stat. 383. This time for surveying, platting and recording was extended three years by act of February 21, 1863, 12 Stat 658, and again for three years from July 1, 1865, by act of June 25, 1864. 13 Stat. 193. The Revised Statutes of the District (A.D. 1874) also provide that all public roads which have been duly laid out, or declared and recorded as such, are public highways, Rev. Stat. D.C. sec. 246; and that every public highway shall be surveyed and platted and that a certificate of the survey and plat shall be recorded in the records kept for that purpose. Rev. Stat. D.C. sec. 248.

"The penalty provided for the obstruction of public roads, as reenacted in the Revised tatutes of June 22, 1874, is limited to such as have been used and recognized for twenty-five years prior to May 1, 1862, and which 'were thereafter duly surveyed, recorded and declared public highways according to law.' Rev. Stat. D.C. sec. 269."

Whatever evidence is necessary to illustrate the instructions will be stated hereafter.

There is an assignment of error which in effect, though in

[ 180 U.S. Page 96]

     form an attack on instructions, questions the sufficiency of the evidence to justify any recovery, and which asserts that it was the duty of the court to have taken the case from the jury. In other words, it is claimed that the trial court should have decided, and not left to the jury to decide, that the road was a public highway. It is not clear upon what the contention is rested. Whether it is rested on the ground that the road was established by the levy court, or that evidence showed beyond reasonable dispute that the road had been acquired by adverse use, or had been dedicated by plaintiff's predecessors in the title. But the evidence did not establish either conclusion beyond reasonable dispute. Both conclusions were disputable and disputed, and whether they were or were not justifiable inferences from the evidence, which was conflicting, was for the jury to determine, not for the court, and the court properly declined to do so. What were within the functions of the court and what were within the functions of the jury are questions entirely aside from the distinction between public and private ways and the manner of acquiring either -- whether by grants or by acts in pais establishing title by dedication or prescription, the propositions which counsel have learnedly argued.

There is no evidence of a formal grant. The dedication of the road or the prescriptive right of the public to it was sought to be proved by the acts of the owners of the land and certain uses by the public. There was opposing evidence or rather evidence of opposing tendency which could be claimed to show that the use by the public was in subordination to the title -- was permissive, not adverse. The issue hence arising was properly submitted to the jury.

The other assignments of error are more specific and exhibit for review the legal propositions which were involved in the issues. These are that the court erred in the following particulars:

(1) In holding and so instructing the jury that the use of the road by the public must have been adverse to the owner of the fee.

(2) In holding and instructing the jury "that the prescriptive

[ 180 U.S. Page 97]

     right of highway is confined to the width as actually and without any intermission used for the period of twenty years."

(3) By depriving the District of the presumption that the public acts required to be performed were performed.

(4) By leaving to the jury a pure question of law, to wit, "whether the District of Columbia had done the acts constituting the trespass 'without the execution of its lawful powers according to law.'"

(5) By submitting to the jury a question of law, to wit, "whether the gravel was obtained incident to the lawful ...

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