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Talbott v. Grace

Talbott and Another v. Grace and Others

Talbott v. Grace, 30 Ind. 389 (1868)
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Court
Indiana Supreme Court · State Highest Courts
Decided
November 15, 1868
Judges
Ray
Citations
30 Ind. 389
Headnotes
Dedication.— User. — In order to show by user a dedication of tho soil of an individual to public use, it must have been a user by tho public adverse and exclusive of the use and enjoyment of the property by the proprietor, and not a mere use by the public under and in connection with its use by the owner in any manner desired by him. Public Landings. — Prescription.—Tho right to land boats and load and .unload freight, and thus encumber the land of an individual adjoining a navigable river, cannot be acquired by the public by prescription or custom. Whoever claims such right by long usage must prescribe in a que estate.
Summary
APPEAL from the Ohio Circuit Court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Ray

Text extracted by OCR from a scanned original; check the original for exact wording.

Ray, C. J.

This was an action by appellants to recover for the use of the wharf, landing, and real estate of the appellants.

An answer was filed in several paragraphs, but as only the ruling upon the seventh is discussed by the appellants we omit the others. This paragraph alleges that the ground in question is situated in the city of Rising Sun, and fronting on the Ohio river, and “ had been used for more than *390 twenty years before the loading of said boats, in complaint mentioned, by the public as a public landing and wharf in said city, for loading and unloading flat boats, and for mooring and fasting said boats, and for the convenience of the public in navigating said river by flat boats and other craft, all of which was well known to said defendants [plaintiffs] and those under whom they claim title, and with their assent.” A demurrer was overruled to this paragraph.

A. C. Downey, for appellants.

This amounts to a claim of a dedication of the property to public use. The facts alleged, however, fail to show this. They do not show a dedication under such circumstances as to indicate an abandonment of the use exclusively to the community by the owners of the soil. To make a dedication it must have been a use by the public adverse and exclusive of the use and enjoyment of the property by the proprietors, and not a mere use by the public under and in connection witli its use by the owners in any manner desired by them. Irwin v. Dixion, 9 How. U. S. 10.

Rut again, the dedication to the public claimed by this answer, is not of a simple right of way or passage, but to land boats, and load and unload freight., and thus encumber the land. Ho such use can be acquired by the public by prescription or custom. Post v. Pearsall, 22 Wend. 425 ; State v. Wilson, 42 Maine, 9. Such a right may, it is held in England, be acquired by the inhabitants of a local district, but cannot extend to the public. Whoever claims it by long usage must prescribe in a que estate. Washb. Easm. p. 77 § 17; Pearsall v. Post, 20 Wend. 111 .

The demurrer should have been sustained to the seventh paragraph of the answer.

The judgment is reversed, and the cause remanded for further proceedings.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

1876–1877: 11886–1887: 11890–1891: 11892–1893: 21898–1899: 11910–1911: 11922–1923: 12018–2019: 118762026peak 1892 · 2

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Post v. Pearsall, 22 Wend. 425 (1839) 91
Pearsall v. Post, 20 Wend. 111 (N.Y. Sup. Ct. 1838) 55

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