
    SUPREME COURT.
    The People agt. John H. Livingston.
    
      Nuisance—in obstructing highway—Indictment for, containing averments of ■continuance—Verdict of guilty. — P/rror—where there is no evidence of Continuance-Highway sought to’ be established by evidence of user— What must be shown—Pacts held to-be insufficient to establish a highway.
    
    Upon the trial of an indictment (containing averments of continuance) for a nuisance in obstructing a public highway, if there is no evidence of continuance a general verdict of guilty is error; and the general term will reverse on that ground,, although on the trial attention was not called to the point.
    Unless the locus in quo is shown' to be a public highway it is the duty of the court on the trial of such an indictment to direct an acquittal (Landon, J.).
    Where a highway is sought to be established by evidence of user it must be shown to exist over the route described in. the indictment (Landon, J.).
    On the facts of the case, held insufficient to-establish a public highway (Landon, J.).
    
      Third Department, General Term, May, 1882.
    
      Before Learned, P. J-, Landon a/nd' Bóardman, JJ.
    
    The defendant was indicted for nuisance in erecting and continuing obstructions on an alleged public highway, three rods wide, located in Berne, Albany county. He was tried in the court of sessions. The plot of ground through which the highway was claimed is triangular in form, being about three-quarters of an acre one side, the stone wall being 476 feet in length; another a highway some 238 feet, and Thompson’s lake being the third boundary. The origin of the privilege, which it was claimed ripened into a highway, was about fifty years ago a stone wall, and in the indictment stated to be the southerly line of the alleged highway, was built. It was constructed with the consent of the original owner, grandfather Secor, as he was called on the trial. The conversation in which it was arranged, as related by his grandson (and the only testimony on the subject), fully explains the situation: “ I heard my grandfather talk about building the fence, and before the wall was built; it was when they came to lay the stone wall.”
    Q. Then you say that those neighbors had assembled to build a stone wall, and then, having come for that purpose, your grandfather made a bargain with them:to build it ? A. Gave them the privilege.
    Q. Do you remember what anybody'said in - that conversation except your grandfather ? A. Nothing,- only they all turned out and helped build the fence.:
    Q Do you remember what your "grandfather said? A. He said, “ Now there you can'have that privilege and go there when you are a mind to.”
    Q. You said it was a: privilege to wash sheep ? A. Of course; they go there and drive their sheep; my grandfather said, “ Now if you will build that stone wall you can have the privilege to drive sheep there and wash them; * * * he also said that for building the sheep pen and the wall they could have the privilege of washing sheep there.”
    The way claimed in the indictment was never laid out as a highway, or fenced or repaired, nor had the town ever done any act to recognize *it as a public highway. . The people, on the trial, relied entirely upon a public user for over twenty years to establish the highway.
    Other facts are stated in the opinions, also as to charge of court and other matters in points of counsel.
    The case was given to- the jury who returned a verdict of 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. Ho 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) “Ho 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. Ho route was specified at the time, nor does one seem ever after-wards 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 authorities (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 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). (6) To constitute a highway it must at least be of public utility if not of necessity (Wetter agt. Harvey, 1 McCord, 67). (e) 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. (g) 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 matter how long that use maybe 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). (g) 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 hi. 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. Reid, 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). (A) There 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 subject-matter tor 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. Bachmam, 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., 539). (a) In ejectment, description must be proved as laid substantially (Tyler on Ejectment, 474). (5) “ 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). Therefore on the proof of a mere pathway at the most — ten to 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 sq wide.
    IY. 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 highway may be established of indefinite width; * * * 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. (5) 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 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). (f) 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 eul de sao 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 eul de sao, 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 eul de sao 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 (Encyclopœdia 
      
      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).
    IY. 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).
    Y. 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).
    YI. 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).
    YII. 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.).
    
   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 hable 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.

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 m 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 Knox road to the sheep pen, but there does not appear to have been any other well-defined path. All over the lot were wagon and cattle tracks, and the evidence fails to show that the travel, except by the sheep, was in an uniform route; and except that at the shore of the lake the tracks were more united. After suffering this miscellaneous trespassing for so many years, doubtless from motives of kindness and good nature, and because the land was not regarded as valuable, the owner has thought proper to enclose it and erect some buildings upon it, thereupon her husband, who has acted as her agent in this matter, has been convicted of wickedly creating and maintaining a nuisance in a public highway. The sheep path upon which the buildings in part stand is charged to be the public highway, and the east fence, or side of the sheep pen, is charged in the indictment to be one of the termini of this highway.

The license given by the owner of the land to those who helped him build his stone wall to drive their sheep across his lot conferred no right upon the public, v The public did not build the wall. The license was to the wall builders, and it does not appear that it was ever extended to any except those claiming under that license.

This was a particular use permitted to a certain class of persons in consideration of service rendered, and in no way inured to the benefit of the general public. Leaving the sheep path out of the case and no road across the lot ever existed, unless the whole lot should be condemned for that purpose.

The indictment describes a road forty-nine and one-half feet wide along the stone waff and covering the sheep path. It is possible from the evidence that that particular part of the lot was used less than any other.

If all the travel across the lot for the last twenty years had been confined to one route it is not improbable that a highway by user would have been located and established, but the burden was upon the people to prove a highway over the route they described, and this they utterly failed to do.

Boardman, J. — I concur with opinion of brother Learned, but dissent from new trial on facts.  