Meservey v. Gulliford

SULLIVAN, J. This action was commenced by tbe plaintiff as road overseer, against tbe defendant, who is appellant here, to compel him to remove certain fences and gate, which it is alleged constitute an obstruction to a highway. This action was commenced on May 23, 1906, and it is alleged that for more than ten years immediately preceding tbe. commencement of this action, “continuously and uninterruptedly, except when interfered with during tbe past two years by tbe defendant,” the public generally have enjoyed and used a public highway over, across and through certain lands, describing them, and that with tbe exception of tbe past two years, when interfered with by tbe defendant, said road has been used and worked and kept up at tbe expense of tbe public as a highway for tbe convenience of the public under tbe direction and supervision of tbe board of county commis — 139 — sioners of Fremont county. It is also alleged that more than ten days prior to the commencement of this action, plaintiff served personally upon the defendant written notice requiring him to remove said obstruction from said highway within ten days from the service of notice, and prays that the defendant be restricted from maintaining such obstructions to said highway, and that they be abated as a public nuisance, and that he have judgment against the defendant for $10 per day as damages for every day that such obstructions remain upon said public highway after the service of -said notice. Those allegations were denied by the answer. The answer also denies on information or belief that the plaintiff is road overseer of Road District No. 20 in Fremont county, as alleged in the complaint, and denies that said gate and fences are obstructions to any highway or encroachments thereon. The cause was tried by the court without a jury, and the court found that the plaintiff was the duly qualified and acting road overseer of Road District No. 20 in Fremont county; that said district was created by order of the board of county commissioners on April 24, 1902; that the defendant was the owner of a certain tract of land in said' road district, describing it, and that from 1887 to the spring of 1905, the road described in the complaint was continuously and uninterruptedly used and traveled by the public as a public road, and that the same was necessary for the convenience and use of public travel; that sometime during the spring of 1905, the defendant erected fences and other obstructions across the north end of said highway, and also maintains various structures, fences and obstructions in and across said highway, and thereby shuts off and segregates the same from the public highway extending on either end of the same, and thereby shuts out and prevents the public from using such highway for public travel; that written notice was properly served on the defendant, requiring him to remove such obstructions more than ten days prior to the commencement of this action. As conclusions of law, the court finds that the fence and obstructions placed upon said highway are a nuisance and should be abated, and the defendant be enjoined from further ob — 140 — structing said highway; that the strip of land described in the findings has been used and traveled by the public for such length of time that the same has become a highway by user, and that said strip of land is a public highway. Judgment was entered in accordance with said findings and conclusions of law in favor of the plaintiff. The appeal is from the judgment. Counsel for appellant assigns a great many errors going to the action of the court in overruling a demurrer to the amended complaint, the admission and rejection of evidence, and that the findings of fact are not sufficient to support the judgment; that such findings are not supported by the evidence and are in direct opposition thereto and are not responsive to the issues in the ease. At the outset, it is contended by counsel for appellants that this action is brought under the provisions of sees. 960 and 963, Rev. Stat., which sections are as follows: “Sec. 960. If any highway duly laid out or erected is encroached upon by fences, buildings, or otherwise, the road overseer of the district may, orally or in writing, require the encroachment to be removed from the highway.” “See. 963. If the encroachment is denied, and the owner, occupant, or person controlling the matter or thing charged with being an encroachment, refuses to remove or to permit the removal thereof, the road overseer must commence in the proper court an action to abate the same as a nuisance; and if he recovers-judgment, he may, in addition to having the same abated, recover ten dollars for every day such nuisance remained after notice, as also his costs in such action. ’ ’ This action was brought concerning a road that had been established under the provisions of sec. 851, Rev. Stat., as amended by laws 1899, p. 12, by user and by being kept up at public expense, and not in regard to a road that had been duly laid out, erected or recorded by order of the board of county commissioners. The provisions of said see. 960 apply to encroachments upon highways “duly laid out or erected,” and it is not alleged — 141 — in the complaint that the highway referred to therein had been dnly laid ont or erected, but that it had been used, worked and kept up at the expense of the public as a public highway for a period of more than ten years prior to the commencement of this suit. There is nothing in this contention, for under the allegations of- the complaint, the highway referred to was one established by user and not one that had been “duly laid out or erected” by the board of county commissioners. Said sec. 963 provides for a penalty against one who has made encroachments upon a public highway and refuses to remove them after notice has been served upon him for the removal thereof. There is a distinction between an encroachment and an obstruction. A penalty was asked for in the prayer of the complaint, but the court, no doubt, taking the view that the penalty there prescribed applied only to highways that had been duly laid out or erected by the board of county commissioners, or recorded as provided by law, and not to highways that had been established by prescription or user, did not enter any judgment against the defendant for the penalty. However, the court failed to give the road overseer judgment for any penalty whatever, and the defendant has no cause of complaint because of the court’s refusal to enter judgment against him for the penalty. Under a statute like our sections 960 and 963, the supreme court of •California in Freshour v. Hihn, 99 Cal. 443, 34 Pac. 87, held that the right of a road overseer to recover the penalty of $10 per day for obstructing a highway does not extend to a case where the highway is established by user or abandonment to the public and has not been recorded as a highway, and we “think that is the correct view of that matter under our statute. (Parker v. People, 22 Mich. 93; State v. Babcock, 42 Wis. 138.) Under the provisions of subd. 2, sec. 870, as amended by laws 1899, p. 127, the board of county commissioners are required to cause to be surveyed, viewed, laid out, recorded, opened and worked such highways as are necessary for public convenience. There is no allegation in the complaint showing that the highway referred to therein has been duly re — 142 — corded as provided by said section. Roads are defined by sec. 851, Rev. Stat., as amended by Session Laws 1893, p. 12, as follows: “Roads laid out and recorded as highways by order of the board of county commissioners, and all roads used as such for a period of five years, provided the latter shall have been worked and kept up at the expense of the public, or located and recorded'by order of the board of county commissioners, are highways.” It will be observed from those provisions that in order to establish a road as a highway, it does not necessarily need to be recorded; that is, that class of roads used as such for a period of five years that have been worked and kept up at the expense of the public, are highways whether they are recorded or not. It is next contended by counsel for appellant that the road overseer has no authority to bring an action to remove obstructions from a highway. Under the provisions of sec. 873, Rev. Stat., as amended by Session Laws 1899, p. 128, the road overseers, under the direction, supervision and pursuant to the order of the board of county commissioners, must take charge of the public highways within their respective districts and keep them clear from obstructions and in good repair. The highways established by user or prescription are thereby placed under the control of the road overseer subject to the order of the board, and it is made his duty to keep such highways clear from obstructions and in good repair. Under the provisions of said section, the road overseer is authorized to remove obstructions from highways established by user, and we think he has full authority, under the orders of the board, to maintain an action to remove obstructions placed therein. At the date of the passage of said amendatory act, the road overseer's were appointed by the board of county commissioners, but an act was thereafter passed which provided for their election, thereby making them public officers. (Sess. Laws 1899, p. 306.) In the case of Freshour, Road Overseer, v. Hihn, supra, a road overseer was the plaintiff and his right to maintain that action was not questioned. — 143 — See. 3634, Rev. Stat., provides that “A public nuisance maybe abated by any public body or officer authorized thereto by law.” Under the provisions of see. 873, supra, it is provided that the road overseer must take charge of the public highways in his district and keep them clear from obstructions and in good repair, and under the provisions of the laws of 1899 (Sess. Laws, p. 360), road overseers are elected by the electors of the road district and are made public officers. The road overseer thus becomes a public officer and the law makes it his duty to keep the highways clear from obstructions, and as he is a public officer, he is authorized by the provisions of sec. 3634, supra, to bring an action to abate a public nuisance, when such nuisance consists of an obstruction placed upon a highway within his road district. In San Benito Co. v. Whitesides, 51 Cal. 416, the court held that -“an action to abate a nuisance caused by an obstruction to the public highway cannot be brought in the name of the county as plaintiff, and must be brought in the name of the road overseer.” The road overseer is the proper party under our statute to bring an action to abate a nuisance when such nuisance consists of an obstruction to a public highway within his district. If the road overseer has no such authority, it certainly would place the county at a great disadvantage, as the boards of county commissioners in this state only have quarterly sessions and are in session but a few days at a time. Highways might be obstructed weeks before the board could order an action to be brought to remove them. I conclude under our law that the road overseer has authority to bring actions to remove obstructions from highways either laid out or recorded as highways, or such as have been established by user or prescription. See. 963, Rev. Stat., provides- that if one who has made encroachments on the highway refuses either to remove or to permit the removal thereof, the road overseer must commence an action to abate the same as a nuisance and for the penalty; but the California courts have held under a similar statute that the provisions of that section, at least so far as it applies to the penalty, — 144 — only apply to roads or highways duly laid out or erected .and recorded. It is next contended by counsel for appellant that since it is alleged in the complaint that the appellant is the owner of the land over which such highway extended, the complaint should have alleged a claim of title to the highway by adverse possession, under the provisions of sec. 4039, Eev. Stat. That section of the statute has no application whatever to public highways, since under the law the public never acquires the legal title to land over which a highway extends. All the right acquired by the public is an easement in the land consisting of a right to pass over the same and keep the road in repair. The legal title to said land remains in the owner of the adjoining land or the land over which the road runs. It is not necessary to allege adverse possession in an action like the one at bar. The public use of a highway for the statutory period and the keeping of it in repair at public expense is all that is necessary to establish it as a highway. The consent of the owner of the land or his dissent makes no difference. (Gross v. McNutt, 4 Ida. 300, 38 Pac. 935.) It is next contended that the court admitted secondary evidence as to the appointment of the road overseer. It appears from the record that the minutes of the board of county commissioners contained a record of the appointment of the respondent road overseer, and that record was introduced in •evidence, supplementing the testimony of the road overseer himself to the effect that he had been duly appointed road •overseer. It is contended that under our law, sec. 1754, Eev. Stat., that the board is required to have kept a book known :as the “road-book,” which must contain all'proceedings and .adjudications relating to the establishment, maintenance, change and discontinuance of roads and road districts and •overseers thereof, their reports and acts, and that that book was the best evidence of the appointment of said road overseer, and under the provisions of sec. 853, the clerk of the board of county commissioners is required to keep a book in which he must record separately all proceedings of the board ¿relative to each road district, including orders, laying out, al — 145 — tering and opening roads, etc., and it is contended that such books are tbe primary and best evidence of tbe appointment of a road overseer. Under tbe provisions of see. 1754, tbe board is required to keep a minute-book in wbicb must be recorded all orders and decisions made by them, and tbe daily proceedings bad at all regular and special sessions, and under the laws of 1899, p. 248, tbe board of county commissioners, at tbe adjournment of each session of tbe board, is required to publish a statement such as will clearly give notice to tbe public of all acts and proceedings of tbe board. Said “minute-book,” if it contains all orders and decisions made by the board, certainly is tbe boob of original entry as to tbe appointment of road overseers, although a “road-book” is required to show that fact also. If all tbe original orders and proceedings are first entered in tbe “minute-book,” that certainly would be tbe best evidence, or equal evidence, of tbe appointment of a road overseer to that of tbe “road-book.” We do not think tbe court erred in admitting said “minute-book” showing the appointment of said road overseer. In Barry v. Smith, 191 Mass, 78, 77 N. E. 1099, 5 L. R. A., N. S., 1028, it was held that in proving tbe fact that a man is a public officer, bis own testimony that be is such officer is competent evidence. Tbe court did not err in permitting tbe road overseer to testify that be was road overseer of said district and did not err in admitting said “minute-book” to show that fact. It is contended that as respondent was appointed road overseer by tbe board, that tbe order making tbe appointment must contain a recital that there was a vacancy in that office, and that without this recital, tbe commissioners would have no authority to make the appointment. There is nothing in this contention, as tbe presumption is that public officers act within their authority until tbe contrary is shown and tbe making of tbe appointment raises tbe presumption that there was a vacancy. (16 Cyc. 1076.) Mercer County Traction Co. v. United N. J. R. Co., 64 N. J. Eq. 588, 54 Atl. 819, is in point, and it is there said: “It is, moreover, a rule of procedure that the burden of proving unlawful or irregular conduct — 146 — rests upon him who asserts it, since there is no presumption of official irregularity.” (16 Cyc. 1078.) In Valley Township v. King Iron B. & M. Co., 4 Kan. App. 622, 45 Pac. 660,. it is said: “In the absence of an affirmative showing, it will be presumed that the officers were in the rightful performance of duty and that the conditions existed which authorized them to act as they did.” (See, also, Harper v. City of Conway Springs, 9 Kan. App. 609, 58 Pac. 488.) Under our statute, the board of county commissioners could legally act in making an appointment if a vacancy existed, and since the record is silent on that question, the presumption is that the board acted within the law and that the vacancy did exist. In the case of the County of Canyon v. Toole, 8 Ida. 501, 69 Pac. 320, this court held that a substantial compliance with the statute by the board of commissioners was all that was necessary. Technical objections are not viewed with favor. It is contended by counsel for appellant that the court erred in finding the width of the highway described in the complaint to be a strip of land twenty-five feet wide on each side of the southwest boundary line of the southwest quarter of sec. 15, township 7 N. of range 41 E., B. M., and that the same had continuously and uninterruptedly been used and traveled by the public as a road from 1887 to the spring of 1905. It is urged that the trial court in this finding added twenty-five feet to the width of the road more than the evidence shows was used as a highway. At least one witness testified that said road was twenty-five feet wide on each side of said section line; that it was approximately twenty-five feet each side of the line. He further testified that the road was fifty feet wide, approximately; that the strip of land traversed there was approximately fifty feet wide. Under the provisions of sec. 932, Rev. Stat., all highways, except alleys and bridges, must be at least fifty feet wide, excepting those consisting of a less width at the date of the enactment of said section. This statute evidently provides the width of a road that is considered reasonably necessary for the convenience of the public generally. In Whitesides v. Green, — 147 — 13 Utah, 341, 57 Am. St. Rep. 740, 44 Pac. 1032, which involved the width of a public highway established by prescription, the court held that the width must be determined from a consideration of the facts and circumstances peculiar to the ease, because in such event the court cannot say that any highway is of a certain width “in the absence of statutory provisions.” In Angelí on the Law of Highways, see. 155, the author says: “"Where there is no other evidence of dedication than mere user by the public, the presumption is not necessarily limited to the traveled path, but may be inferred to extend to the ordinary width of highways; or, if the road be inclosed with fences, to include the entire space so inclosed.” The court in Burrows v. Quest, 5 Utah, 91,12 Pac. 847, said: “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. .... 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.” In Elliott on Koads and Streets, sec. 174, the author states: “If the right to the way depends solely upon user, then the width of the way and the extent of the servitude is measured by the character of the user, for the easement cannot be bro.ader than the user; but if.there were defective proceedings, and the use was under color of the claim supplied by them, then the extent of the easement should generally be measured by the claim exhibited by the proceedings and by them intended to be established. This is in strict accordance with — 148 — the elementary principle of the law of real property, which declares that, where there is color of title, and possession of part is taken under the claim of title, it will cover the whole, but that where there is no color of title, the right will not extend beyond the actual possession, the pedis possessio. But it may be doubted if that rule applies in all its strictness to highways acquired by user and prescription. While it is true that the extent of the servitude is measured by the character of the user, and that, in a general sense, the easement cannot be broader than the user, yet the right of the public is not necessarily limited strictly to the main traveled path in all instances, and it has even been held in some jurisdictions that the user may evidence a right to a way of the statutory or usual width in the neighborhood. ’ ’ It would seem that the right acquired by prescription and user carries with it such width as is reasonably necessary for the reasonable convenience of the traveling public, and where the public have acquired the easement, the land subject to it has passed under the jurisdiction of the public authorities for the purpose of keeping the same in proper condition for the enjoyment thereof by the public. (See Whitesides v. Green, supra.) And where the right is so acquired, such width must be determined from a consideration of the facts and circumstances peculiar to each case. However, it must be borne in mind that the statute fixes the width of highways at not less than fifty feet, and common experience shows that width no more than sufficient for the proper keeping up and repair of roads generally. It is further contended that it was error for the court to find, under the issues made by the pleadings and the proof, that said highway had existed since June, 1887. On this point the complaint alleges as follows: “That for more than ten years immediately preceding the commencement of this action, continuously and uninterruptedly, except when interfered with during the past two years by the defendant, the public generally have enjoyed and used a public highway over, across and through the said described lands.” — 149 — It is contended that as this suit was commenced on May 10, 1906, it was error for the court to admit evidence tending to show that said road was first traveled in June, 1887. It is contended that the allegation, to wit, that for more than ten years immediately preceding the commencement of this action,” etc., did not extend back further than ten years and one day, and that it was error for the court to admit evidence to show that the road was first traveled as early as June, 1887, that being about nineteen years before the commencement of the action. On this point, appellant cites Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. ed. 316. In the complaint in that action, it was alleged that the debtor before his death was absent from the state “for more than five years.” The court held that that allegation could not be treated as definitely describing a longer period than five years and one day. Going back to June, 1887, the court held that the road in question had been traveled continuously up to the spring of 1905. The court fails to find that said road had been worked and kept up at the expense of the public or that it had been located and recorded by order of the board of county commissioner's as a highway, as provided by said sec. 851, as amended by the Session Laws of 1893, p. 12. But it is contended by counsel for respondent that said road was established as a highway under the provisions of said sec. 851 before its amendment, which did not require the road to be kept up at the expense of the public. The difficulty arises from the fact that it is alleged in the complaint that said road had been used by the public and kept up at public expense for more than ten years prior to the commencement of the action, and the issues made by the pleadings clearly show that this action was commenced and the issues framed upon the theory that said road had become a highway by user and by reason of the expenditure of public money thereon under the provisions of said sec. 851 after its amendment in 1893. For that reason it was error for the court to admit evidence of the establishment of this road from 1887 to 1893. As the court failed to find that said road was worked at public expense for a period of five years, the findings are not sufficient on which to base a judgment in — 150 — favor of the plaintiff without a finding to that effect. It was error, under the issues, to enter judgment on the theory that said road had become a highway by prescription prior to 1893. Several errors were assigned in regard to the admission and rejection of evidence. It will not be necessary for us to pass upon each of them separately. Assignment No. 11 is on the ground that the court permitted the plaintiff to state in what road district certain lands were situated. There was no error in that, as a plat of the road district was introduced in evidence showing the lands included within said district. Objection was raised to the introduction of said plat on the ground of its insufficiency, but we think the plat sufficient and that it was properly admitted. The question was asked one witness whether or not there was a well-established road there at that time, and he was permitted to answer over the objection of counsel for the defendant. While that calls for a conclusion, we do not think it reversible error. The witness ought to have stated the condition of the road, rather than whether he considered it a well-established road or not. The court rejected certain evidence offered to show that there were numerous roads running in all directions across the school section involved in this controversy, and there were several questions asked which, if answered, would tend to illuminate the issues made by the pleadings, and it is sufficient for us to say here that in ease this action is tried again, the •court should admit all evidence showing or tending to show that there was no well-defined and established road along the ■section line referred to. The judgment is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion. Costs are awarded to the appellant.