CITY OF RATON v. POLLARD, 270 F. 5

MUNGER, District Judge (after stating the facts as .above). The plaintiff in error claims error because the court refused a peremptory instruction in favor of the city. It claims 'that the evidence was not sufficient to show a public street at this place, because it did not show that the city had ever accepted it by some affirmative act of its officers recognizing it as a street of the city. It then maintains thát such an acceptance is necessary under the statutes of New Mexico. It is unnecessary to set out the statutes.

They clothe the city of Raton with the usual broad power^ of municipal corporations to establish, improve, or vacate streets, and impose a duty to keep the stréets open and in repair. Some restrictions are imposed upon the power of the city to condemn property for streets, and other restrictions are imposed upon the creation of streets in platted additions; but no statutory restrictions are found which limit the creation of a street by prescriptive use or which require any formal acceptance of it by official action.

Section 3365, Statutes of New Mexico, provides: “No person or persons, nor tlieir children or heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, against any one having adverse possession of the same continuously in good faith, under color of title, but within ten years next after his, her or their right to commence, have or maintain such suit shall have come, fallen or accrued, and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments so held, shall be commenced within ten years next after the cause of action therefor has accrued.” Plaintiff in error does not contend that itjs not the general rule, applicable in New Mexico, that a street or highway may be established by prescriptive use, where the general public under a claim of right and not by mere permission of the owner, have used some well-defined way without interruption, but contends that it must also be shown that the municipality accepted or recognized the highway by. some act of its officers.

Although there is some division in the cases, the better rule and the one established by the weight of authority is that the continuous and adverse use by the public .for the requisite time is sufficient to show acceptance of the highway. Bassett v. Inhabitants of Harwich, 180 Mass. 585, 62 N. E. 974; Gallagher v. City of St. Paul (C. C.) 28 Fed. 305; Phelps v. City, 23 Minn. 276; Green v. Canaan, 29 Conn. 157; Jones on Easements, § 459.

Plaintiff in error also contends that a highway cannot be established by prescription over the right of way of the railway company because the right of way is already devoted "to a public use. In support of this proposition is cited the case of City of Albuquerque v. Garcia, 17 N. M. 445, 130 Pac. 118, denying the power of condemnation to a city for street purposes of a community acequia in actual use, and the case of Northern Pacific Railway Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L.

Ed. 1044, holding that an individual could not for private purposes acquire any portion of the right of way of the Northern Pacific Railway Company.

But the question here involved is not the power to acquire by condemnation against the railway company’s consent, but the power to acquire by prescriptive use, which presumes the consent of the owner; neither is it determined by the decision in the Townsend Case, which interpreted the acts of Congress granting a right of way to the Northern Pacific Railway Company as prohibiting its alienation, for the right of way of the Santa Fé Railway Company is not shown to have been granted by Congress, but is shown to have been acquired by deed from the Maxwell Land Grant Company, and no restriction on alienation is shown to exist.

The general and approved rule is that title .fiiay be gained by adverse possession to portions of a railway company’s right of way (Illinois Central R. Co. v. Houghton, 126 Ill. 233, 18 N. E. 301, 1 L. R. A. 213, 9 Am. St. Rep. 581; Illinois Central R. Co. v. O’Connor, 154 Ill. 550, 39 N. E. 563; Illinois Cent R. Co. v. Moore, 160 Ill. 9, 43 N. E. 364; Donahue v. Illinois Cent. R. Co.; 165 Ill. 640, 46 N. E. 714; Metropolitan Bank of Minneapolis v. Northern Fuel Co., 173 Ill. 345, 50 N. E. 1062; Pittsburgh, C., C. & St. L. Ry. Co. v. Stickley, 155 Ind. 312, 58 N. E. 192; Northern Pacific Ry. Co. v.

Townsend, 84 Minn. 152, 86 N. W. 1007, 87 Am. St. Rep. 342; Wilmot v. Yazoo & M. Val. R. Co., 76 Miss. 374, 24 South. 701; Spottiswoode v. Morris & E. R. Co., 61 N. J. Raw, 322, 40 Atl. 503; Texas & P. Ry. Co. v. Maynard [Tex. Civ. App.] 51 S. W. 255; Northern Pac. R. Co. v. Ely, 25 Wash. 384, 65 Pac. 555; 2 Corp. Jur. 225, 54 R. R. A. 526, 87 Am. St. Rep. 766, 780, note), and that highways may be established by prescriptive use over or along the right of way of a railway company (Gay v. Boston & A. R. Co., 141 Mass. 407, 6 N. E. 236; Hall v. Boston & M. R. R., 211 Mass. 174, 97 N.

E. 914; Pittsburgh, C., C. & St. L. Ry. Co. v. Town of Crow Point, 150 Ind. 536, 50 N. E. 741; Blumenthal v. State, 21 Ind. App. 665, 51 N. E. 496; Gage v. Township of Pittsfield, 120 Mich. 436, 79 N. W. 687; Village of Peotone v. Illinois Central R. Co., 224 Ill. 101, 79 N. E. 678; Gulf, C. & S. F. Ry. Co. v. Bluitt [Tex. Civ. App.] 204 S. W. 441; Gulf, C. & S. F. Ry. Co. v. Bryant [Tex. Civ. App.] 204 S. W. 443).

Plaintiff in error expresses some doubt of the sufficiency of the evidence of a general public use of the road and bridge under claim of .right ind not by permission of the railway company, to allow the case to be submitted to tire decision of the jury. The evidence was ample and undisputed that for more than 20 years there had been general public travel over this highway by all who chose to go. It was us'ed for purposes of business and pleasure. It had the appearance of an established and well-traveled road. The bridge was a very substantial frame structure, and had been in place all of this time.

The road connected with and was the direct outlet of one of the main streets of the city. Several residences were built to front on it. No interruption of travel had occurred during this period of time. The use of the road was as general as the nature of the country adjacent to the city required and permitted. There was no evidence of any expressly asserted claim of right to travel over this highway, other than this user; nor was there any evidence that any permission to travel on this way had ever been sought of the railway company, nor that any had ever been granted or denied.

The general public use of land as a highway for the prescriptive period, without anything to explain how it began, raised a presumption that it was adverse, under a,claim of light, and cast the burden on the city to show that the right was permissive. Washburn on Easements & Servitudes (4th Ed.) 126, 127; Meade v. City of Topeka, 75 Kan. 61, 88 Pac. 574; Hartley v. Vermillion, 141 Cal. 339, 74 Pac. 987; White v. Chapin, 12 Allen (Mass.) 516; Barnes v. Haynes, 13 Gray (Mass.) 188, 74 Am. Dec. 629; Steffy v. Carpenter, 37 Pa. 41; Esling v. Williams, 10 Pa. 126; Polly v. McCall, 37 Ala. 20; Smith v.

Ponsford, 184 Ind. 53, 110 N. E. 194; Mitchell v. Pratt, 177 Ky. 438, 197 S. W. 961; Moll v. Hagerbaumer, 98 Neb. 555, 153 N. W. 560; Wendler v. Woodward, 93 Wash. 684, 161 Pac. 1043; Muncy v. Updyke, 119 Va. 636, 89 S. E. 884; Wooldridge v. Coughlin, 46 W. Va. 345, 33 S. E. 233; 19 Corp. Jur. 959. Upon the record, we think the evidence was sufficient for the jury to find the existence of a public street at the place of the accident, and the judgment will be affirmed.