of this as a road, to my knowledge. That in 1873 and 1874, he [Brockbank] repaired and turnpiked said road from the State road west, its full length to the Church farm; that he did this under the direction of the county court of Salt Lake county, which paid for these repairs. The total paid by the county for these repairs was $593."

Defendant also gave evidence tending to show that said. street had been used as a public highway for over 30 years; that he was road supervisor of the district in which the lands were situated, and that the acts complained of were done in the line of his duty as such.

The following statement of the trial judge is contained in the statement on motion for a new trial: "Both the witnesses of the plaintiff and defendant testified that no portion of the platted street had ever been used by any person as a road, except a strip in the centre of the same about two rods wide; that there was a ditch on each side of this strip, and that the street runs east and west; and that the plaintiff had been in uninterrupted possession of the land lying up to and along the line of the south ditch for more than eight years continuously before the institution of this suit; that he had planted thereon fruit and shade trees. and currant bushes, and used a considerable portion thereof as meadow land; that the same was embraced by the deed of Eddins, and the premises described in the complaint; and that the principal damage done to the plaintiff by the defendant, Guest, was caused by digging up a portion of said trees and bushes, and destroying a portion of said meadow land. As to the alleged destruction and possession of the strip between said ditches there was a conflict in the testimony. That the street as platted was four rods wide, and the alleged trespass was within the four rods."

The defendant requested the court to submit to the jury, as a question of fact to be determined by them, whether the land in question was or was not a highway; and by his sixth and seventh requests asked the court to charge the jury as follows:

"(6) You are further instructed that it is not necessary that a dedication be made by deed or other special form;

nor is any special form of acceptance of such dedication. necessary to be made. It is solely a question of intent on the part of the person to dedicate, and on the part of the public to accept. If, therefore, you believe from the evidence that the road in controversy was used by the publie as a road, with the knowledge of plaintiff or his grantor, or other persons claiming the property now claimed by plaintiff, without objection by such person so claiming the same, with intention to appropriate the same as a public road, and that Salt Lake county has expended money in repairs and improvements of the same, then you are instructed that this evidence may be received by you as tending to show a dedication to and acceptance by the publie for road purposes.

"(7) If the jury believe from the evidence that the land described in the complaint has been dedicated to the public as a road, and that public use has been made of only a part of the same, then you are instructed that such use relates to the entire width of the road as originally laid out and dedicated. If, therefore, you find that the road in controversy was originally laid out and dedicated as four rods in width, and that there has been a public user only of three or less number of rods in width, you are instructed that such user of a part may be considered as evidence tending to show an acceptance of the whole as laid out and dedicated."

All of which were refused, and the jury instructed as follows:

"If the jury find from the evidence that that portion of the premises described in the plaintiff's complaint on which his trees and shrubbery stood, was never used as a road, and that the plaintiff was in possession of the same at and before the date of the alleged trespass, then the defendant, Guest, has not shown any facts in justification of his acts in digging up the trees and removing the ground which was so possessed by the plaintiff, and the plaintiff is entitled to recover whatever damages he has sustained by reason thereof. There is no evidence in this case tending to show any dedication, for the purpose of a road, of any portion of the premises described in the

complaint, except that portion between the two ditches on each side of the traveled street, and as to whether there has been a dedication of that portion as a public road is a question for the jury; but in any event, if the jury find in accordance with the first instruction, the plaintiff is entitled to the damages which he has sustained for the trespass committed by the defendant on the premises outside of the ground between said ditches."

The jury returned a verdict for the plaintiff, upon which judgment was entered, and, after motion for new trial, the case comes to this court on appeal by the defendant, alleging error in refusing to receive in evidence the plat and survey, and in refusing to give the instructions. asked for.

This record presents to us the question as to what may be considered in determining the width and limits of a highway established by user. The trial judge, while submitting to the jury the fact as to whether a highway had been established over a part of the land, charged the jury that there was no evidence tending to establish a dedication of any part of said land, except a narrow strip through the centre thereof, upon the theory that the limits of a highway could not be shown to extend beyond the portion actually used and covered by the traveled track, and that the owner's continued possession and use of a strip along the south side thereof, as before stated, was conclusive evidence against its dedication for the use of the public as a highway. In this there was error. The question should have been submitted to the jury. When a highway is established by user merely over a tract of land of the usual width of a highway, or over a tract of land where, by a survey and plat which has been recognized and adopted by the owner, a street or highway of a certain width is laid out, the right of the public is not limited to the traveled part, but such user is evidence of a right in the public to use the whole tract as a highway, by widening the traveled part or otherwise, as the increased travel and the exigencies of the public may require: Sprague v. Waite, 17 Pick., 309; Barclay v. Howell's Lessee, 6 Pet., 498; Hannum v. Belchertown, 19 Pick., 311; Irwin v.

Dixion, 9 How., 10; Bumpus v. Miller, 4 Mich., 159; Ang. Highw., sec. 155.

In this case there was evidence showing that the public had been using portions of this street continually as a highway for over 30 years; that the public had from time to time improved, widened, and repaired the road at great expense, without objection from the plaintiff or his grantor; and the plaintiff received his title to the premises by a deed which not only expressly recognized this street, but recognized it as a street four rods wide, and including all the land in question. This was evidence which should at least have been submitted to the jury, tending to show that the dedication extended over the land in question. Its weight was for the jury, aided by proper instructions from the court: Ang. Highw. sections 142-149; Gould v. Glass, 19 Barb., 195; Daniels v. People, 21 Ill., 439; Pettingill v. Porter, 3 Allen, 349.

In determining the extent of the dedication, all the circumstances may be considered, the width of the highways in the vicinity of the land in question, the width of highways in a system of which the one in controversy forms a part, any circumstances of recognition by the owner of the fee and the public of definite and fixed limits. It is but matter of common understanding and experience that it is desirable and usual that streets and highways should be and are of uniform width: and when a plat or survey of a tract of land is in existence showing uniform width of streets, and the public are entering upon and improving the streets persuant to the general plan of such survey, it is evidence, more or less strong, according to circumstances, against the owners of such lands who have knowledge thereof, and who have in any way recognized such plan and survey, when the public by user establish a highway on one of such platted streets, and commence to improve the same, that the dedication by such owners is of the extent as platted, and that, it is a question of fact for the jury. The continued use of the lands by the plaintiff was not absolutely, as matter of law, inconsistant with the easement created by the right of way as a highway. The owner of the fee has the right to use land in any way not

inconsistent with the requirements of the public. Ang. Highw. Secs. 301-311. It was a circumstance which, with all the other facts, should have been submitted to the jury. Barclay v. Howell's Lessee, supra.

The question as to whether the land in question was a highway should have been submitted to the jury, and the defendant's requests to that effect should have been given. For this error, the judgment and decision should be reversed, and the cause remanded for a new trial, with costs to the appellant.

ZANE, C. J., and BOREMAN, J., concurred.

v.

DISY ALLEN, APPELLANT . JOHN S. BARNES, AS ADMINISTRATOR, ETC., RESPONDENT.

CONSTRUCTION OF WILL-POWER TO ADMINISTRATE AS INCIDENTAL THERETO. -Act of Congress, approved June 23, 1874, Section 3, gives to probate courts exclusive original jurisdiction of all matters pertaining to settlement of estates, but district courts may take cognizance of equitable suits for construction of wills, but when the will is construed, it is left to the probate court to execute, and district court will not proceed with administration. ID-DISCRETION OF EXECUTORS. A clause in a will stating that "it is my further desire that out of the proceeds of said estate, leaving same to the best judgment and discretion of said executors hereinafter named, to pay" certain sums per month to testator's mother and aunt, gave to the administrator cum testamento annexo a reasonable discretion to fix the amount at what he deemed sufficient, to be paid out of any part of said estate in his hands.

APPEAL from a judgment of the District Court of the Third District. The opinion states the facts.

Messrs. Williams & White for appellant.

Mr. M. M. Kaighn for respondant.

HENDERSON, J.

The complaint avers that Joseph M. Allen died December 23, 1880, leaving the following will: "In the name of