v. Nipple, 92 Ind. 310; Wilson v. Peelle, 78 Ind. 384; Coleman v. Lyman, 42 Ind. 289.

Judgment affirmed.

(102 Ind. 578)

STRONG, Trustee, etc., v. MAKEEVER and others.

Filed November 17, 1885.

WAYS-PUBLIC HIGHWAY-TWENTY YEARS' USER-REMEDY OF PARTY AGGRIEVED -REV. ST. IND. § 5035.

Petition for rehearing overruled. See 1 N. E. Rep. 502.

Appeal from Newton circuit court.

On petition for rehearing. See 1 N. E. Rep. 502.

ZOLLARS, J. As stated in the principal opinion, this proceeding is based upon section 5035, Rev. St. 1881, which provides that “all public highways which have been used, or may hereafter be used, as such for twenty years or more shall be deemed public highways; and the board of commissioners shall have power to cause such of the roads used as highways as shall have been laid out, but not sufficiently described, and such as have been used for twenty years, but not recorded, to be ascertained, described, and entered of record." In that opinion we said:

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"By the explicit and positive terms of the statute that (twenty years') use made the road a public highway. Under this statute, it is the twenty-years' use that makes the road a public highway, and it is immaterial whether the use is with the consent or over the objections of the adjoining land-owners. With the expiration of the twenty-years' use, as in this case, the statute intervenes, and declares the road to be a public highway regardless of its origin or the mere objections by the land-owners. The statute does not affect a remedy merely, but establishes a right."

These portions of the opinion are vigorously assailed by appellant's counsel. If, in this assault, the logic were as vigorous as some of the statements, we might well hesitate before overruling the petition for a rehearing. Counsel's interpretation of the statute is shown by the following from his brief:

"The statute does not say nor mean that the use of land for twenty years authorizes that land to be described of record as a public highway. The statute contemplates the creation of a public highway by consent of the land-owner, either by an imperfect record made perfect by opening and actual use, with full knowledge of the land-owner's rights, or a highway by dedication, used as such for twenty years.

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Paraphrased and abridged, this interpretation amounts to this: If, with the knowledge and consent of the land-owner, a way has become a public highway by either of the modes named, then, if used as such for 20 years, it shall be deemed a public highway. Such an interpretation, in our judgment, would render the statute utterly meaningless and nugatory. The difficulty with counsel's position is that the establishment of public highways by proceedings before the county board, and by dedication, is confounded with the establishment of such highways by the 20-years' use under the statute. The words "public highway," as first used in the statute, has more especial reference to highways established by proceedings before the county board. As applied to high

ways as established by 20-years' use, the meaning of those words would have been better expressed by the word "way" or "road." In that portion of the section in relation to making the record it is provided that such roads, etc., used as public highways for 20 years, shall be ascertained and recorded; thus showing that "public highways," as used in the first part of the section, means "roads," or traveled ways, and not "public highways," in the full legal sense. All of the provisions of the section of the statute taken together mean, and can only mean, that a way or a strip of land, used as a public highway for 20 years, shall be deemed and become a public highway. This use is to make that a public highway which, but for such use, would not be and could not be deemed a public highway. If, without and independent of such use, the way is a public highway by dedication or otherwise, then the 20years' use under the statute amounts to nothing, and the statute is a useless enactment. A way may become a public highway by dedication, express or implied, in much less time than 20 years. It was said in the case of State v. Hill, 10 Ind. 219, that four or five years' unopposed use of a way by the public may be sufficient to raise the presumption of a dedication. It is said in argument that if such 20 years' use may establish a public highway without regard to the consent of the land-owner, it will result that highways may be thus established over the lands of persons under legal disability,-such as infants, etc.; and that a construction of the statute should not be adopted that might bring about such a result. What would be the result of such use if the way were over the lands of persons who, during the entire 20 years, were under legal disability, is a question not now before us for definite and final decision. We may state, however, that such persons are bound by statutes of limitation and like statutes, unless they are excepted from their operation; and hence it is that, in almost every instance, they are excepted from the operation of all such and similar statutes. That is so in most if not all the states, and it is so in this state. See, for example, Rev. St. 1881, §§ 296, 615, 901, 2403, 6467. Under a statute in New York, which provided that "all roads not recorded, which have been or shall have been used as public highways for 20 years or more shall be deemed public highways," it was said, in the case of Devenpeck v. Lambert, 44 Barb. 596

"That is to say, shall be judged or held to be public highways from the mere fact that they have been used as such for twenty years. I agree that, if no statute were in the way, the intention of the owner of the land on which the road exists would control the question whether it had been dedicated to the public for a high. way. But the mere intention of the owner of the land is not material under the statute referred to. The uninterrupted use of the land as a public highway for twenty years alone, according to the statute, constitutes it such a highway. Such a user of land for the period makes it a public highway under the statute, though the owner be a lunatic, an infant, or a married woman, and has no knowledge thereof during the entire time. I think such is the obvious meaning of the statute, and that it must be so construed, for the reason that there is no exception in it saving the rights of persons incapable of consenting, or who do not consent, to the use of their land for a highway."

Under a statute similar in its nature, in that it provided that all streets, roads, and alleys within a named village, which have been worked and

improved by the trustees of the village, or the commissioners of highways of the village, and are now used as such, shall be deemed public highways, it was said, in the case of Hickok v. Trustees of the Village of Plattsburgh, 41 Barb. 130:

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"This was a special legislative enactment that all the streets, roads, and alleys in that village should be thenceforth public highways, if brought by this act within certain conditions. It is therefore really unimportant, under the special provisions of this statute, to enter upon an inquiry as to what constitute a highway at common law. The very fact that the special statute provides that those streets, roads, and alleys should be deemed highways, in case they came within the terms of the act, implies and presupposes that at least some of them, by reason of not being laid out in accordance with the statute, and their having been of less than twenty years' use, were not then public highways. *** The character of these streets, roads, and alleys is to be determined, not, as is urged, by discussing the common law or general statute provisions, but by inquiring, simply, whether, as a matter of fact, any particular street or alley comes within the special provisions of the fourth section of the act of 1848."

So, in the case before us, the inquiry is not whether the road has become a public highway under common-law rules, by dedication express, or with the knowledge and consent of the land-owners, but whether, as a matter of fact, it has been used as a public highway for 20 years, and thus become a public highway under the statute. And so, under a statute like that under discussion, it was said, in the case of People v. Judges of Cortland, 24 Wend. 491:

This provision does not authorize the commissioners to say what was 'origin. ally intended,' either by the owner of the soil or any one else, in relation to the width or location of the road, any further than such intention has been manifested by permitting the way to be used. It is a power in relation to the road, 'as it actually exists and has existed for the last twenty years.'

In the case of Hart v. Trustees, etc., 15 Ind. 226, cited in the principal opinion, the trial court found the facts specially that, prior to the obstruction sued for in the action the public had, without interruption, used the road continuously for 21 years, having no right to so use it, except from such continued use. Upon appeal, this court said:

"We have decided that 'a road which has been used by the public continuously for twenty years becomes a public highway, and is of no established width by law; but its width, as used at the end of the twenty years, cannot legally be intruded on.' Epler v. Niman, 5 Ind. 459. This decision seems to be precisely in point, because here the public had used the road without interruption for twenty-one years, hence it was a public way under the statute, and its width at the end of twenty years was its established width."

In the case of Ross v. Thompson, 78 Ind. 90, it was said, in speaking of the statute under examination:

"Where, therefore, there has been twenty years' user, the way is to be deemed a public one, and those asserting rights in it are not bound to show an original intent to dedicate. The law makes the lapse of time sufficient, without further evidence."

The other cases by this court, cited in the principal opinion, give support to our conclusion here, although the main questions for decision were not the same as here. There are some statements in the opinion in the case of Board, etc., v. Huff, 91 Ind. 333, which, if applied to the statute under consideration, are not in harmony with the conclusions we have reached in this case. So far as they may be in conflict with our conclusions here, they are disapproved. In their petition to the

county board appellees allege that the highway they wish to have ascertained and recorded is upon a section line,-one-half upon either side thereof; and, as thus located, has been used as a public highway for 20 years. The proof shows, beyond a doubt, that the highway, as thus used, is not upon the section line as alleged, but varies from it. And, while appellees in their petition allege that the highway, as thus used, is onehalf upon either side of the section line, the theory of their case, aside from the petition, from beginning to end, is that, as opened and used, the highway is not upon that line, but should be, because it was located there by a proceeding by the board of township trustees in 1857, and because the land-owners, at the time it was opened and they built their fences, supposed that it was being opened, one-half upon either side of the section line. They are seeking to have ascertained, described, and recorded a public highway, not as it has been used for 25 years, but as it should have been opened before the user began. They are thus seeking to have done what the county board has no authority to do. The county board, under the statute, may ascertain, describe, and enter of record a public highway as used for 20 years, but there is no authority to go beyond the way as thus used. Especially is this so when there is resistance by any one having the right to resist. The holdings in New York, under a similar statute, have been that, so far as the record goes beyond the way as used for 20 years, it is absolutely void, for want of authority. People v. Judges of Cortland, supra; Cole v. Van Keuren, 6 N. Y. Sup. Ct. 480; Talmage v. Huntting, 29 N. Y. 447; Borries v. Horton, 16 Hun. 139; Marvin v. Pardee, 64 Barb. 353.

We need not indicate here as to whether or not we approve of and will follow those cases to the full extent to which they go; but we do approve of them to the extent that when resistance is made, as in this case, the county board cannot go beyond the way as used for 20 years. This is as far as we need go in this case. To grant what appellees contend for would be to hold that, under the statute under consideration, and in a proceeding like this, the county board may, over objections, abandon and vacate the highway as used for 20 years, and establish it upon a different line, to correspond with what the land-owners may have supposed was the correct line at the time the highway was opened and they built their fences. And in this case it would be to hold also that appellees may ground their petition upon one theory and succeed upon another and different theory. The statement of either proposition is its own refutation.

Appellees do not dispute what is established by the evidence, without conflict, that the way as now open has been used as a public highway for more than 20 years. They go upon the theory, as we have seen, that it was not opened upon the line as fixed by the proceeding by the board of township trustees before the commencement of the user; and they rely upon the record of that proceeding, in part, to establish that fact. When it is admitted or established that the way, as now open, has been used as a public highway for more than 20 years, the record of such proceeding can avail appellees nothing, as evidence or otherwise. In the

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first place, such a record will not be allowed to overthrow a highway established by such user; in the second place, the county board has no authority over objections, in a proceeding like this, to make a record of a highway different from that shown to have been established by such user; and, in the third place, the record would not prove, but would tend to disprove, the averments in their petition that the highway, used as such for more than 20 years, is upon the line therein described. accordance with appellees' theory, the court charged the jury, in effect, and refused everything to the contrary, that this record would control, and fix the highway upon the line therein described, notwithstanding the fact that the highway, used as such for more than 20 years, is upon a different line. Such instructions put the case to the jury upon a wrong theory, did not state the law correctly, as applicable to the case, and hence were erroneous. We held in the principal opinion that the proceeding by the board of township trustees was void, and the record thereof not competent evidence, because the width of the highway was not stated therein. That proceeding, it will be remembered, was to change a public highway. For this reason, appellees' counsel argue at length that the width of the highway as changed need not be given; that it will be presumed to be of the same width as before the change; and so the court below charged the jury. After an examination of counsel's argument, we see no reason to change our ruling.

While such a proceeding is called changing a highway, practically it amounts to vacating one highway and opening another. If the width of the highways changed is not stated at all in the proceeding, then the question of its width is left to the judgment or to the conjecture of each individual citizen. The highway sought to be changed may be one established by user, where the width is determined by the way actually used. The change may consist in moving the highway a rod or a half mile in any designated direction. After the change is perfected, the old way is closed up and vacated, and, it may be, plowed over and cultivated, and every trace of its width obliterated. Then there comes a controversy as to the width of the changed or new highway, and there is nothing by which its width can be determined. These proceedings cannot be left to this kind of uncertainty. The same reasons that require a holding that the width of the highway shall be given in other highway proceedings, require such a holding here. In the record of the proceeding by the board of township trustees under examination there is nothing in the petition, notice, or order that gives or indicates the width of the old or of the highway as changed.

It is further argued by appellees' learned and industrious counsel that the judgment should be affirmed as to the west mile of the highway in Newton township, because as to that mile, as they contend, there had been an adjudication. In June, 1882, the superintendent of highways, who was appellant's predecessor in charge of the highways in that township, filed a petition before the county board asking that they send out a surveyor, and thus ascertain and enter of record the west mile of the highway, (which he averred had been used as such for more than 20