#### Alonzo Wicks *et al,*App’lts, *v.*Albert D. Thompson, Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed February 9, 1891.)*

Highways—Dedication.

The common source of title of the parties hereto devised lands to his sons. *341S. and J., that to the latter being ten feet east of a lane. Before his death, however, he widened the road to the line of J.'s land, and such road was used to gain access to said lands for over fifty years. A fence was built a few feet from said line by S., which was afterwards removed, and S. advised persons to purchase from J. and to build up to the line of the road. Plaintiffs built a fence shutting off defendant from the road, which defendant removed. *Held,*that there was a practical location of the line and a dedication of the road up to J.’s line; that the fence, when erected, was a nuisance, which defendant had a right to abate.

Appeal from, judgment in favor of defendant

Action for trespass in tearing down a fence claimed to be upon plaintiffs’ land.

One Joshua Wicks, who was the common source of title, devised adjoining lands to his sons Selah and James, the land devised to James being described as lying ten feet east of a lane. It was shown, however, that he widened said lane so as to extend to James’ land, and used the same for access to both portions. Selah fenced in said road, but subsequently widened it to sixty feet and took down the fences. The road has been used for access to said land for over fifty years, and Selah advised persons to purchase land of James. Plaintiffs are devisees of Selah and defendant a grantee of James. Plaintiffs built a fence on the east side of the road, leaving a small strip between it and defendant’s land, and defendant took it down, which is the trespass complained of.

*Wm. G. Nicoll,*for app’lts; *Wilmot M. Smith,*for resp’t.

Pratt, J.

This is an appeal from a judgment entered upon the verdict of a jury and from an order upon the minutes of the judge denying a new trial.

The record shows that the case was submitted to the jury under a charge as favorable to the plaintiff as he was able to ask, and upon the issue as so made a verdict was rendered for the defendant

It is, I think, perfectly clear that Joshua Wicks, when the road was laid out through the land, intended to make the west line of the road the east line of the land devised to James Wicks, the prior owner of defendant’s land.

The proof shows that for the space of about fifty years the west side of the lane was the east side of said James Wicks’ land.

This was a practical location and the possession and user by each party of the land upon their respective sides of this lane must be presumptive evidence of title.

I think it is also clear that when, in 1879, Selah Wicks opened Maple avenue, he intended to and did open it up to James Wicks' land, so that if the plaintiff has any title as a basis for his suit it is a varying strip about six inches wide upon which the fence stands.

But the verdict was right, even, upon this contention of the plaintiff.

It is plain that Selah Wicks made the west side of Maple avenue which he dedicated to public use so as to take in the whole lane as it existed at that time. It is absurd to suppose that he intended to reserve six inches on the west side of the avenue, as no good purpose can be attributed to such an intention, and his whole con*342duct afterwards refutes any such claim. His declaration at the time of opening the avenue that he did not intend to leave any land between the avenue and the land of his brother, and after-wards advising parties to build upon the west side of the avenue, makes it incredible that he did not intend to dedicate Maple avenue up to his brother’s land.

If such is the fact, then Maple avenue, for its whole length, was a public street, and the plaintiff had no right to erect a fence on the west side, and the same, when erected, was a nuisance and the defendant had a right to abate it.

But assuming that the fence stood upon the land of the plaintiff, and that Maple avenue did not include the land upon which the fence stood, we think, under the proofs, the jury were justified in finding a verdict for the defendant.

The trespass consisted in a use of the land as a right of way as it had been uninterruptedly used for over fifty years.

It was a use that the common owner had made before it was devised to James Wicks, and by the latter for over forty years. We think, therefore, the defendant had a right to use the whole roadway and to enter upon it as he and his father before him had been in the habit of doing for more than fifty years.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.