
    Nail & Iron Company v. Furnace Company.
    
      Public road — Abandonment by non-user — When complete.
    
    Under a claim of abandonment of a road in a municipal corporation, proof that no work had been done on the road by the public authorities for fifteen years; that the road was at times in bad condition and impassable; that it passed over a steep hill; was difficult of use; that a new road had been established in the vicinity intended to take its place; that for eleven years before suit was brought travel had been substantially diverted to the new road, and that portions of the old road had been fenced in, are not sufficient to show abandonment by the public.
    If non-user of such road may work an abandonment of it, the non-user must be shown to have extended over a period of twenty-one years.
    (Decided October 29, 1889.)
    Error to the Circuit Court of Lawrence County.
    
      The action below was commenced by the defendant in error against the plaintiff in error, in the year 1884, to recover for damages to the lands of the Furnace company lying within the City of Ironton, by reason of the construction and operation of a tram? railway on a public road within said city, upon which the lands abutted. One of the defenses interposed was that the alleged road was not such at the time of the building •of the railway, but had been abandoned.
    The railway was built in 1883. Evidence was given tending to show that work had been done on the public road about fifteen years prior to that date, but that, by reason of not being kept in repair, its use by the public practically ceased some three years after, though portions of it continued to be used; that the road passed over a steep hill, and was, in a sense, impracticable as a highway, and a new road had been established in the vicinity, intended to take its place; that travel; since the year 1872, had been almost wholly diverted to the new road, and that, in front of the Furnace company’s land, and in other places, the old road had been fenced up for some time. But no statutory vacation had taken place, although a petition was filed for that purpose with the county commissioners in 1874, to which a remonstrance was interposed, and the proceeding abandoned.
    At the trial the court charged the jury, among other propositions, the following:
    
      “ Evidence has been introduced, by both plaintiff and defendant, as to this question of abandonment; as to whether this road has been abandoned or not, and I call your attention to those principles which will guide you in determining from the evidence whether the road has been abandoned or not. Whether the road has been abandoued is a question of intention, and this intention is to be ascertained from the acts and conduct of the parties, and the circumstances of the case. If the public acquired the right to use this road as a public highway, and did so use it, then the right existed, and before it can be said to be abandoned, the facts and circumstances must show the fact of abandonment, and the intention to abandon it by the public. Look into the evidence to determine this question.”
    A verdict and judgment against the Furnace company having been rendered, error was prosecuted to the "circuit court, where the judgment of the common pleas was reversed. To obtain a reversal of this latter judgment, this proceeding in error is instituted.
    
      W. A. Hutchins and W. H..Enochs, for plaintiff in error.
    
      We claim a public highway can be abandoned by the acts and conduct of the public. ’ Take this case : The old road ran over the hill; a tunnel is made for the new and different road ; the old road over the hill is fenced up. Is it necessary to go into court to have the old road over the hill, and almost over the tunnel, to be declared vacated, or is it not abandoned? It is said the law never requires a vain thing to be done, and this certainly would be the height of vanity. Suppose another case : A road passes down and up banks over a stream ; a bridge is built across the stream ; is not the old road-down the bank, across the stream and up the bank on the other side abandoned as soon as the public adopts the bridge, and time has nothing to do with it ? Is it not, in the language of the court in the charge to the jury, a question of intention ?
    In this case, a city is laid out over this old road with streets, lanes and alleys, and yet council claim there is but one way of abandonment," and that is by vacation as provided by statute.
    The charge of the court below is sustained by the case of Rittlemyer v. Flick, 2 Clev. Rep. 115; Fox v. Hart, 11 Ohio, 414-416.
    
      A. T. Holcomb and Ralph Leete, for defendant in error.
    Defendant in error maintains that nothing less than an exclusive, adverse holding of the land and a total abandonment by the public, of the highway, for 21 years can extinguish the right of the public to the use of the road, unless vacated under the statutory provisions.
    
      This doctrine is supported by the following authorities: Angel on Highways, page —; Wood on Nuisance, page 278; 27 Am. Report, page 295; Washburn on Easements, pages 669-670; 8 Ohio, 298; 19 Ohio, 367; 11 Ohio, 414; 13 Ohio St., 42 ; 5 Ohio St., 602.
    The statute of Ohio requiring seven years actual abandonment of an unopened road, to vacate it, clearly implies that a road opened and used, must be vacated by statutory proceedings or by non-use for 21 years. -
    The charge of the court of common pleas, ignores time, as an element, and instructs the jury to guess at the intention of the public. The intention of the public can never be proven. Rev. Stats., secs. 4661 and 4683.
   Spear, J.

The question in the case is: Did the acts of the public in omitting to do work on the road for fifteen years, and in establishing another road as a substitute for it, and use of the new by the great proportion of the public for eleven years, taken in connection with the acts of adjoining owners in fencing portions of the old road, work an abandonment of it ?

We think this question must be answered in the negative. However, the street in question may have been established, the right of the public can not have been less than if acquired by prescription. The easement thus acquired could be defeated only by a vacation in conformity with the statute or by nonuser by the public for such length of time as would amount to an abandonment of it. The former is not claimed. Could the right, when.so acquired, be lost by non-user in any less time than is necessary to acquire such right by prescription ?

A dedication to public use may be presumed when acts and declarations of the owner indicate a purpose to dedicate, though the use has been for a period less than twenty-one years; but in order to presume a grant or dedication from use by the public, and acquiescence alone by the owner, such use and acquiescence must have continued for the period necessary to bar an action to recover possession of the land. The acts and declarations relied upon as showing intention to dedicate must be clear and unequivocal, but, when shown, they are effective. Intent of the public is not so easily shown. A practical difficulty is met at the outset, viz., that a majority, even a large one, can not, in such cases, speak for, or give away, the rights of even a small minority.

In this state, adverse possession by a claimant to the whole or a portion of a street within a municipal corporation, in order to bar the corporation from its rights of control and enjoyment, must be continued twenty-one years. And it seems reasonable to hold that non-user by the public, in order to work abandonment of such a street, must be shown to have been as long continued as its use originally was necessary to raise a prescriptive right, or as long as an adverse claimant must show possession in order to maintain title by force of the statute of limitations.

That the road in question had been neglected and allowed to become in bad condition, and proved impracticable of use in part, and had been substantially supplanted by another, we think can have no bearing on the case. It does not follow that right of use is lost because more convenient facilities are furnished. Nor did the fencing in of portions of the street suspend or defeat the public right. Such exclusive occupation, for the time stated, could not ripen into a right, or be taken as indicating a purpose on the part of the public.

It appears to be well settled by the authorities that in order to work abandonment by simple non-user of an easement, all acts of enjoyment must have totally ceased for the same length of time necessary to create th'e original presumption, and we hold that where non-user by the public, of a. street within a city is relied upon as proving an abandonment of it, such non-user must be shown to have continued for a period of twenty-one years.

The rule here- indicated, is one easy of application, is consistent with accepted law on the general subject, is in harmony with the spirit of our statute law as to streets, and will, we think, be found to be sustained by Washburn on Easements, 550 to 559 ; State v. Culver, 27 Am. Rep. 295; Ward v. Ward, 7 Exch. 838 ; Corning v. Gould, 16 Wend. 531; 3 Kent’s Com. 451.

Abundant provision is made by statute, (see section 4661, 4683, 2652 and 2655), where á road or street becomes useless, for the vacation of a county road by the commissioners, a township road by the trustees, and a street in a city or village by the council thereof, or by the court of common pleas. And no good reason exists why the statutory remedy may not be resorted to in all cases where there has not been a clear non-user of the street by the public for the period of twenty-one years.

Judgment affirmed.  