
    HIGHWAYS — TRESPASSER—ADVERSE POSSESSION.
    [Lorain Circuit Court,
    May 4, 1901.]
    Max Morehouse v. Joseph Burgot et al.
    Caldwell, Hale and Marvin, JJ.
    1. Trespasser Obtains no Rights Unless Permitted to Make Large Improvements.
    A trespasser upon a highway can gain no rights unless the public stands by in silence and permits such trespasser to make a large outlay of money. Under such circumstances, the silence is the greater wrong and may deprive the public of its property by estoppel.
    2. Statute oe Limitations Does not Run in Favor oe Trespasser.
    The statute of limitations does not allow a party to do wrong and gain rights by it. Hence where an owner of land adjoining a highway undertakes to get possession thereof by trespass no statute of limitations runs in his favor.
    S, Occupancy Defeats Adverse Possession.
    Occupancy defeats possession by another under the statute ’ of limitations. Therefore the owner of land adjoining a public road cannot get possession of it so long as it is occupied by the public notwithstanding this occupancy may be very small.
    4. Possession of Two Persons Successively.
    If one person occupies property for ten years and abandons it, and another person obtains possession, not under the first occupant, but independently, these facts do not establish title by possession in the last occupant: There must be privity of estate or some connecting link to establish title by the adverse possession of two persons.
    Appeal.
    
      E. G. Johnson and F. M. Stevens, for defendants in error.
    
      Lee Stroup and W. W. Boynton, for plaintiffs in error.
   Caldwell, J. (Orally.)

Max Morehouse against Joseph Burgot, supervisor, and Charles Maddock against Joseph Burgot supervisor; these two cases are alike and will be decided together.

In early times there was a road extending east and west along the bank of the lake in Sheffield township. There was a road running north and south down to tha*- ^oad, and there is evidence to show that north and south road extended not only to that road, but was continued further by being laid out and by use, on to the lake, on to the beach. There is evidence of logs being placed there and other property for floating. So that we find in thus case that the north and south road did extend to the lake. But in the course of time the waters of the lake ate away the bank unt'l this early road was about to be, or in places was, destroyed. Thereupon another road was located further south from the bank and the old road was thereupon given up. The old east and west road. The roadbed on the north and south road extending from the new road to the lake was not thereafter much used, but it was some used. Recently, it is shown, that the township authorities were about to undertake the improvement of it and make it mre useful as a way t» the lake and a hignway, and this suit was brought to enjoin them from doing it.

This suit is based upon two claims. First, there was an abandonment of this road, this end of the road between the new road and the lake. And'second, that the statute of limitations has run.

And it is claimed that the evidence shows that ever since the making of the new road, that this piece of road between the new road and the lake has been closed up by the owners on each side, and that they have gained in that way, long years ago, gained the right to hold it from the township authorities, and to keep the township authorities from again using it as a highway, by reason of the statute of limitations.

The evidence as to that shows that Mr. Day for a long time owned the land on the west of this road, he never closed up any part of this road; he never undertook to take possession of any part of it. On the east Fitch owned the property, and he not only undertook to close the half of the road next to him, but he undertook to close the entire road, and it is claimed that he did keep it closed.

After a while Day sold his property to another party on the west, and it came into the hands of Maddock. Day owned it when he died and it came afterward into the hands of Maddock, and by some sort of an arrangement, as the evidence would lead us to believe, the owner on the east and the owner on the west then determined this road between them, and they mutually, or in some way, put a fence down the center of .it. But this was after 1890. The possession of the west side of that road then shows simply this, that the owners of the land on the west side never until 1890 undertook to take any possession of it. Whatever possession prior to that time the owner on the east side had, or whatever possession he had taken of the road he then voluntarily gave up, and another party, not privy to his possession or connected with his possession in any way whatever, then undertook to close up the west side.

If A occupies property for ten > ears and gets up and moves out, and B goes in, not under A without transfer of possession or anything of the kind, and occupies it fifteen years more, they do not establish any adverse title at all. There must be some connecting link between the possession in order to put them together. There was none in this case according to the evidence; we find if there is a statute of limitations of twenty-one years it never has run as to the west half of this road, and that being true, unless there is something in the.doctrine of abandonment separate from that of possession, there is no reason that the authorities cannot open the west side of this road.

As to the other part, the evidence shows in this case that there never was an exclusive occupation of this road, separate from the public.

A cannot gain possession of B’s land and gain title to it if at the •sr-me time he is occupying it, B occupies it; that is impossible. That •occupancy may be very small, may amount to nothing scarcely, but yet there is an occupancy at that time, it stops the statute right where it commenced. That was exactly the case with this entire road. There ne^er was a dme when the public did not go down that way to the lake; the evidence shows that clearly. It may be small, but that makes no difference. It shows this principle, that there was an occupancy by the public and these property owners at the same time; during the time that ti'.e property owners claim to have established title by exclusive pos. %ssiou, which they have not done, it establishes that principle, and that is the principle that is against their recovering this property in this way. But as to this question I shall not undertake to review the authorities. The cases Cincinnati v. Evans, 5 Ohio St., 594; Williams v. Presbyterian Church, 1 Ohio St., 478, and Lane v. Kennedy, 13 Ohio St., 42, are all on the doctrine of equitable estoppel. And that doctrine is simply this, that if a man stands by and sees his neighbor build on his property a very expensive, costly building, and then asks him to get off, and comes to the courts to make him get off, knowing exactly what he was doing, and when called upon to know why he did not ask him to stop' earlier, he answers, why he knew as well as I did where the line was, the records are public, he could go to them and find out, surveyors are plenty, all wanting fees, he will be estopped.

That doctrine may be an answer according to those cases, and a court will under certain circumstances apply this equitable doctrine.

In the case from Cincinnati of Williams v. First Presbyterian Church, 1 Ohio St., 478, the officer himself led the parties and caused them to build their church so they got out in the street.

In Cincinnati v. Evans, supra, there was a great large building out in the street a few inches, and the doctrine was applied there. It has been applied nowhere in this state except where a party has done something by way of a large expenditure of money, and would have been a great loser by reason of restoring the original line of the street.

There has been an uncertainty in the courts of this state for some years past, and some have applied this doctrine of estoppel to any kind of possession of a highway, regardless of the question of the amount of injury.

No question of damage is involved in this case. This is like the case referred to in Heddleston v. Hendricks, 52 Ohio St., 460 [40 N. E. Rep., 408], There the doctrine was put upon trespass, and makes it a continuous trespass from day to day, and a new offense. Where a party undertakes to get a road by trespass there is no statute of limitations, there can be none. To apply the statute in that case would be allowing a party to do wrong and gain rights by it.

The rule seems to be this, no one by a trespass on the highway can gain any rights, unless the public stands by in silence and sees him make a large outlay of money, then such silence is a greater wrong, and will deprive the public of its property by estoppel. But there is no such equity here; the plaintiffs in these two cases are entitled tono such grounds of equity; there is no damage going to come to them, except the loss of this land, and that being true they come under the doctrine of Heddleston v. Hendricks, supra, and there can be in their case no statute of limitations, unless this doctrine of abandonment applies.

As there was no open and declared abandonment; no substitution of one road for another. In Nail & Iron Co. v. Furnace Co., 46 Ohio St., 544 to 548 [22 N. E. Rep., 639], the judge says, in substance, if there be a case of abandonment it cannot apply short of twenty-one years, under such facts.

The case of McAllister v. Hartzell, 60 Ohio St., 69 [53 N. E..Rep., 715], . has no bearing, as there was a mere substitution of one way for the other.

Hence in a case of abandonment where a party claims the public authorities have abandoned in some other way than the statute provides, by mere silence the public cannot be divested of its rights in the highway by any statute of limitations, unless some doctrine of equity comes in to estop the public authorities.

Neither of the plaintiffs are entitled to the relief asked for, and theipetitions are dismissed.  