Talbott v. Grace
Talbott and Another v. Grace and Others
Headnotes
Summary
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Opinion of the Court
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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
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(holding that the public cannot, by prescription or custom, acquire a right "to land boats, and load and unload freight, and thus encumber the land" on the banks of the Ohio River)
Cited by 9 cases
View all citing references →Relies on it most ⓘ
- Shellhouse v. State
- Don H. Gunderson and Bobbie J. Gunderson, Co-Trustees of the Don H. Gunderson Living Trust v. State of Indiana, Indiana Department of Natural Resources, Alliance for the Great Lakes
- Starr v. People
- Chapman v. Dean
- California Navigation & Improvement Co. v. Union Transportation Co.
- City of Topeka v. Cowee
Most recent
- Don H. Gunderson and Bobbie J. Gunderson, Co-Trustees of the Don H. Gunderson Living Trust v. State of Indiana, Indiana Department of Natural Resources, Alliance for the Great Lakes
- Stringham v. Chicago, Indianapolis & Louisville Railway Co.
- Chapman v. Dean
- California Navigation & Improvement Co. v. Union Transportation Co.
- Starr v. People
- City of Topeka v. Cowee
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.