State v. Horlacher

The opinion of the court was delivered by Reavis, J. The defendant was charged with erect [326] ing, continuing and maintaining a public nuisance by-constructing a fence across a public highway in Whitman county. The information was filed under subdivision 4 of the act relating to nuisances, approved March 2, 1895, (Laws 1895, p. 19, § 1), which declares: “It is a public nuisance to obstruct or encroach upon public highways, private ways, streets, alleys, commons, landing places, and ways to burying places.” Defendant at the trial was found guilty by the jury and judgment of the court entered in accordance with the verdict, and the judgment also directed the removal of the obstruction by the sheriff. Defendant appeals. The testimony introduced by the state showed the continued and uninterrupted.use of a public highway between the city of Colfax and the town of Rosalia in Whitman county for more than fifteen years, across a quarter section of land known at the trialas the “Horlacher tract,” with but a single material change on the tract. This change was made to improve the condition of the grade over a ridge or hill, and was done by the road overseer. Afterwards a fence was erected along the line of the road as made by the grade by the owner of the land. Public monies were expended for several years on this road under supervision of the road overseer. Ro change was ever made in the road at the point defendant obstructed it. The first error assigned by appellant is that the state should have been compelled to elect whether it would rely on prescription, dedication, user or legal establishment by the county;commissioners of the existence of the highway obstructed by defendant. It was not necessary to make such election. The fact of the existence of a public highway may be established by any competent evidence, and there is no distinction in the [327] validity of either method of the establishment of a public highway in this state. An imperfect effort by the proper authorities to lay out a highway may be material and competent evidence to show right in the public by dedication or user. It is also urged by appellant that the trial court erred in sustaining objections to the introduction of testimony by the defendant at the trial. A letter from the clerk of the board of county commissioners in answer to a letter from defendant relating to the road was not admitted in evidence. The letter was by order of the board of commissioners and stated, among other things: “ It is recommended that you and Ledbetter together with those interested with you agree upon the change in the route as surveyed by Whiteis [Horlacher Change] and when you do this the board will make the proper orders to secure you a road. If you can all agree upon the road as you suggest in your letter I think you would be perfectly safe in putting your fences upon the agreed line.” No offer was made by the defendant to show that he had complied with the terms of the letter, and on this ground the court excluded it from the consideration of the jury. This ruling was correct. The letter could only, in any event, be material to negative the wilful obstruction of the highway by defendant and to show his good faith. The board of commissioners did not have the authority to change the highway except in the manner directed by law. Another error complained of was that defendant was not allowed to state whether he had consented to the use of the highway. The inquiry was properly directed to the acts and declarations of defendant relating to the use by the public of the highway, and [328] nowhere was the formal consent of defendant attempted to he shown by the state, but the proof was directed solely to acts and declarations. The errors assigned to the court’s instructions to the jury are not sufficient to reverse the case. With the exception of two, they all relate to the proof of a highway by prescription and, upon the testimony in the cause, stated the law. The exceptions were, one in which the jury were told that immateral changes and alterations in the travel of the highway by the public would not change the character of the road; the other instruction was that the jury must find from seven to ten years’ user. The court in the last instruction evidently had in view the curative statute of 1889-90, (Laws p. 733) entitled “ An act correcting informalities of record in the establishment of the various public roads and highways in this state.” But, in view of all the testimony in the case, it cannot be said that defendant was prejudiced by the last instruction, as it was not necessary, upon the testimony in the record, for the state to invoke the curative statute to maintain the highway. Taken together with the other instructions given, the case was fairly submitted to the jury, and the proof of a highway by prescription was clear. Upon the record here the judgment must be affirmed. Scott, C. J., and Dunbar and Gordon, JJ., concur.