[180 U.S. 92, 93] [Messrs. Andrew B. Duvall and C. A. Brandenburg for plaintiff in error.
Messrs. Conway Robinson, Walter D. Davidge, and Leigh Robinson for defendants in error.
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 a trench 386 feet long, 33 feet wide, and 14 feet deep, and carrying away 4,683 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. 92, 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 $8,000, and a judgment was duly entered thereon. It was affirmed by the court of appeals (14 App. D. C. 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 made 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:
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. 92, 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 plaintiffs' 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. 92, 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 gravle was obtained incident to the lawful exercise of the power to grade.'
(6) By 'sustaining the granting of the twelfth prayer of the defendants in error, and thereby submitting to the jury to find and determine both the law and the facts of the case; and also thereby holding that if the jury found any one of the facts enumerated in said prayer, without regard to its probative force, it would tend to prove Harewood road was not a public way, and rebut any presumption that it was a public highway.'
(7) By refusing the twenty-third prayer of the District, 'and thereby holding that the defendants in error were not bound by the answer of the commissioners to the bill of discovery filed by the testator of the defendants in error respecting the bona fides of the action of said commissioners in respect of the alteration of Harewood road and the purpose of such alteration.'
(8) By instructing the jury that they 'might enhance the damages that would make them whole by any sum not greater than the interest on such amount from the time of the filing of the original declaration.'
I. The first proposition was presented by the following prayers requested by the District and modified by the court. The words in brackets were struck out by the court, those in italics were added:
But for the criticism of counsel the modifications and additions made by the court might be considered as having done no more than to bring out more clearly the meaning of the prayers. The recognition and control of the road by the District, and its use by the public under 'a claim of right' (third prayer), or 'without asking leave of the owner and without objection from him' (fifth prayer), seem equivalent to a declaration of adverse use. Counsel, however, now contend for a different meaning and a different principle of law. They contend first, as we understand, that use alone, without regard to the consent of the owner of the fee or his attitude to the use, constituted the road a highway (prayer 2), and required a grant of it to be presumed (prayers 3 and 5).
The contention is not justified. The use must, be adverse to the owner of the fee. The rule is correctly stated in 2 Greenleaf on Evidence. The learned author, after defining prescription and the period of possession which constituted it, and explaining the modern practice which has introduced 'a new kind of title, namely, the presumption of a grant, made and lost in modern times, which the jury are advised or directed to find, upon evidence of enjoyment for sufficient length of time,' says: 'In the United States grants have been very freely presumed, upon proof of an adverse, exclusive, and uninterrupted enjoyment for twenty years.' And after stating the quality of presumption which arises, he continues: 'In order, however, that the enjoyment of an easement in another's land may be conclusive of the right, it must have been adverse, that is, under [180 U.S. 92, 100] a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted; and the burden of proving this is on the party claiming the easement. If he leaves it doubtful whether the enjoyment was adverse, known to the owner, and uninterrupted, it is not conclusive in his favor.' 538, 539. Under a different rule, licenses would grow into grants of the fee, and permissive occupations of land become conveyances of it. 'It would shock that sense of right,' Chief Justice Marshall said in Kirk v. Smith ex dem. Penn, 9 Wheat. 286, 6 L. ed. 91, 'which must be felt equally by legislators and judges, if a possession which was permissive and entirely consistent with the title of another should silently bar that title.'
2. This prosition arises on the following prayer given at the request of the plaintiff:
The same reason and principle applies to this as to the preceding proposition. Relying for right of way on use, the right could not extend beyond the use. Or, as it has been expressed, 'if the right to the way depends solely upon user, then the width of the way and the extent of the servitude is measured by the character of the user, for the easement cannot be broader than the user.' 1 Elliott, Roads & Streets [2d ed.] 174, and cases cited.
3. This proposition is based upon the modifications by the court of the twelfth prayer requested by the District. It was as follows:
The objection to the action of the court is that the District was thereby deprived of the presumptions which attend and support the acts of public officers.
One of the defenses made by the District was that the road had become a highway under and by virtue of the acts of Congress heretofore referred to. As a condition of this defense it was necessary to establish that the road had been surveyed, platted, and recorded by the levy court, and it was the effect of the prayer which was requested that the performance of that duty would be presumed by the law from the fact that the road had been worked and kept in repair by the levy court. In other words, such surveying, platting, and recording would be presumed because it was the duty of the levy court to have done them under the acts of Congress. Undoubtedly the law indulges presumptions of the performance of their duty by public officers, and presumptions of the existence of circumstances which generally precede or accompany acts testified to and which are necessary to their validity, but such presumptions are in aid of the evidence. They are not independent of the evidence, nor raised against it. The record shows that the plaintiffs' testimony tended to establish 'that the road was never surveyed, platted, or recorded as a public road, as required by [180 U.S. 92, 102] law.' The testimony on the part of the District was that the secretary to the governor of the District in 1871 obtained from the former secretary of the levy court what were supposed to be all of the records of the court, and turned them over to the treasurer of the board of public works, and that those records may be among the old records of the District, but witness did not know; nor did he know what was among them, and had no distinct recollection of any map of the road. Another witness, who was road supervisor from 1869 to 1871, testified that he saw the map of Harewood road and other roads among the records of the old levy court of the District, in its room in the city. He did not know, however, when the map was prepared or by whom; that it embraced several roads; it was a map of the District of Columbia and the roads in it. Another witness (William T. Richardson), a civil engineer, testified that under the direction of the commissioners of the District he found records and maps of the levy court relating to Harewood road; that he found some maps, one made in 1873, in Governor Shepherd's time, and also a copy of the levy court map; that the maps and records were found in the vault of the old District building on First street; that he found no other maps or records relating to the levy court or Harewood road; that the map found was a copy of the original map showing the roads of the District, signed by a president of the levy court and clerk; that the first map was in pen work, and was an original made in 1873 under authority of an act of the late legislative assembly of the District. There was another map professing to have been made in 1857 by Mr. Boscke, while he was an employee of the District. The accuracy of the Boscke map was testified to, and it and the other maps were put in evidence.
The evidence therefore showed what the levy court did as to surveying, platting, and recording the road, and the effect of it could not be taken from the jury and a presumption substituted for it. Such presumption might have been given to the jury as an element of decision in connection with the evidence, and might have been so given by the court if asked.
The prayer was objectionable for another reason. It assumed that a record of the survey and plat of the road was [180 U.S. 92, 103] made and lost. This was a fact in issue, and could not be assumed. The court left the fact to be deduced from the evidence, telling the jury, however, that they could infer it, although there was no direct evidence of it.
4. The eighth prayer given at the request of the plaintiff was as follows:
The italics are ours, and they indicate the words upon which the District especially bases its objection. That objection is that a pure question of law was submitted to the jury. The objection is very general, and hardly attains to such specification of an error as can be noticed. However, we have examined the charge of the court, and think what was meant by the words objected to was sufficiently explained.
5. The eleventh prayer asked by the plaintiff was as follows:
It is objected that the prayer submitted to the jury a pure question of law; to wit, whether the gravel was taken as an incident to the legal exercise of the power to grade. But a definition accompanied the question. The jury was told that what was meant by the legal power to grade was a power exercised by the Commissioners jointly, and the court carefully added that such legal power could be presumed from the supervision of the grading by the officers and employees of the District. The prayer is not amenable to the objection made.
6. The twelfth prayer requested by defendants in error, and given by the trial court with the modifications expressed in italics, was as follows:
The objection that this prayer left to the jury to decide the law and the facts of the case is not justified, nor that it was held that, if any one of the enumerated facts was proved, the Harewood road was not a public way. The prayer summarized the facts in evidence, but did not express an opinion as to their probative force, whether collectively or separately considered. [180 U.S. 92, 106] Each fact had some probative quality and value, and it was proper for the court to say so, 'and that any and all such facts,' as the court remarked, 'if believed by the jury, were to be considered in connection with the other evidence in the case.' And the court further said: 'If the jury upon the whole evidence believe [not upon any one fact believe] that the said lane or road was not such highway at the time of the facts complained of, and was not a highway by dedication,' then they should find that the gravel was not removed from a public highway, which was the defense made in the third additional plea of the District.
7. The testator of defendants in error filed a bill for discovery in 1882, on the equity side of the supreme court of the District of Columbia, against the District, its commissioners, and two assistants of the engineer commissioner. The bill alleged that he intended to bring an action against the defendants in said bill for the trespasses which constitute the matter of the present controversy, and, after stating with particularity the grounds of discovery, submitted interrogatories to be answered by the defendants, as to the time the acts were done which were complained of as trespasses, by whom done, under whose superintendency, by whom paid and out of what fund the work was paid for, the amount of gravel or earth dug and where taken, if taken from the limits where dug, and if any books, accounts, documents, or papers were kept recording or evidencing the facts. Certain of the defendants made answer under oath to the interrogatories. As to the probative force of the answers the District at the trial of the case at bar asked the court to instruct the jury as follows:
The prayer was refused. Upon what ground, however, does [180 U.S. 92, 107] not appear. It might have been refused, and could have been, even if it contained a correct declaration of law, on account of its general character. It is attempted here to be particularized. The specification of error is that the court, by refusing the prayer, held 'that the defendants in error were not bound by the answer of the commissioners to the bill of discovery filed by the testator of the defendants in error respecting the bona fides of the action of said Commissioners in respect of the alteration of Harewood road and the purpose of such alteration.' Whether the trial court would have given the prayer if it had been limited to the good faith of the District commissioners we cannot know. Presumably not, if it made their answer in the discovery suit conclusive proof, as claimed in the prayer which was refused. The greatest strength of proof attributable to an answer under oath in a suit in equity is that it cannot be overcome by a single witness unaccompanied by some corroborating circumstance. That it has even that strength in a common-law court we are not called upon to decide. It certainly has not conclusive strength. Lyon v. Miller, 6 Gratt. 438, 439, 52 Am. Dec. 129; 1 Pom. Eq. Jur. 208. The prayer requested was therefore properly refused.
8. At the request of the plaintiff the court instructed the jury as follows:
The objection is to the interest. It is not claimed that in cases of tort interest may not be allowed in the discretion of [180 U.S. 92, 108] the jury. It is asserted that under the circumstances of the case the court should not have submitted the claim of interest to the jury. But it was the plaintiffs' right to have invoked the exercise of the discretion of the jury, and the circumstances of the case were to be considered by it in exercising such discretion, and presumably were considered.
9. One of the issues in the case was whether the gravel was taken as an incident to grading the road or for use on certain streets in the District. There was also an issue as to the width of the road and the right to take gravel outside of that width. Prayers were asked on those issues. The ninth prayer of the District was modified by the court and given as modified as follows (the additions of the court are in italics):
The criticism of the court's action is that it allowed the jury to consider the motive of the District in grading the road. We think counsel misapprehended the purpose of the modifications of the prayer. It did not question the motives of the District authorities, nor did it assume anything that was not within the issues of the case. The right to take gravel within the limits of the road which might be established by the evidence, and in the exercise of grading, was conceded. The right to take gravel outside the limits of the road, or not for the purpose of grading it, was denied, and properly denied. It was an easement in the land, not the fee to the land, which the public acquired by the road, and the measure of the easement was the width of the road. The right to grade and improve was incident to the easement, but the easement gave no other right in the soil [180 U.S. 92, 109] or to the soil. The right to remove soil from one part of a road to another part may be conceded. And it has been decided such right extends to other streets forming parts of the same system. Of this, however, we are not required to express an opinion, as it is not involved in the prayer.
Finding no error in the record, the judgment is affirmed.
Mr. Justice Gray took no part in the decision.