Hatch Bros. v. Black

Blydenburgh, Justice. Defendants in error filed a petition for rehearing herein, and additional counsel joined therein and requested to be heard and stated in their brief that “the establishment of a highway by acts of the unofficial public is a question of immense import” and “much public interest has been manifested in the opinion of the court on this question since it was first handed down,” and “it is to be regretted that the case was not argued orally and that it was not submitted to — 427 — the consideration of a full bench.” On account of these suggestions and representations an oral argument was ordered on the petition for rehearing, and a very able and exhaustive argument of the question involved was heard by a. full bench and elaborate briefs were filed in addition to those originally filed in the case. It was admitted at the argument on this hearing that the case would have to be sent back for a new trial for the reasons stated in the opinion relating to the evidence as to damages, and it is not sought to change the judgment of this court in that respect, but it is contended that this court was in error in holding virtually that a highway could be established in Wyoming by an acceptance of the grant or dedication by the federal government under the act of July 26, 1866, by user by the public without any official act on the part of the county authorities. In fact this is the only question presented by the petition for rehearing. The general law on the subject is well stated in 13 Cyc., page 465: “An offer of dedication, to bind the dedicator, need not he accepted 'by the city or county or other public authorities, but may be accepted by the general public — to deny this would be to deny the'whole doctrine of dedication. The general public accepts by 'entering upon the land and enjoying the privileges offered — or, briefly, by user. Except when user is relied on to raise a presumption of dedication, the duration of the user is wholly immaterial. It is not necessary that such user should continue any definite length of time, or that so long as the persons enjoying it have done so as members of the general public and not as neighbors or licensees, or otherwise in their individual capacity, they should be of any defined number. While no dedication will be presumed from user alone unless the user has been so long and so general that the public convenience would be materially affected by its interruption, no such requirement applies strictly as to the user which constitutes the acceptance of a dedication otherwise established, it being only necessary that those who would naturally be excepted to — 428 — enjoy it do, or have done so, at their pleasure and convenience.”' That this doctrine obtained in Wyoming, and that there can be an acceptance of the federal dedication by user under the laws of the territory of Wyoming, at least prior to 1886, is evident from the statutes as quoted in the original opinion herein and was admitted at the hearing, but it was contended that the statutes of the territory beginning with 1877, perhaps, and certainly from 1886, and the statutes of the state since its admission,'especially the act of 1895, are inconsistent with an acceptance by public unofficial user of the federal grant and in fact repealed the common law right originally recognized. The congressional act of 1866 was passed to give the public .a right of way over the public lands of the United States that they could not have acquired in any other way. “The object of the grant,” it was said in Wells v. Pennington County (1891), 2 S. D. 1, 39, Am. St. Rep. 758, 48 N. W. 305, 39 Am. St. Rep. 758, “was to enable the citizens and residents of the states and territories where public lands belonging to the United States were situated to build and construct such highways across the public domain as the exigencies of their localities might require, without making themselves liable as trespassers. And when the location of the highway and roads was made by competent authority or by public use, the dedication took effect by .relation as of the date of the act; the act having the same operation upon the lines of the road as if speciñally described in it. * *• * * The parties to a dedication are the owners and the public; and it must be remembered that the public is an ever-existing grantee, capable of taking dedications for public uses, and its interests are a sufficient consideration to-support them.” This dedication by Congress to the public of rights of way for highways over .the public lands of the United States is a valuable right and it is not to be presumed that the Legislature in this state, where distances are-great, county funds from taxation applicable to road work comparatively — 429 — small and inadequate to meet the demands of the inhabitants in different parts of the county, where roads in new and sparsely settled portions of the state of necessity have to be made and traveled 'by the public without the aid of the county authorities, intended to abrogate and annul this right and open the way to legalized blackmail of the county authorities by fencing up such used roads and requiring the county thereafter to condemn and pay damages for a way otherwise belonging to the public, unless such intention is so clearly expressed by the enactment that no other conclusion can be reached. This was especially true at the time of the passage of the act of Congress in 1866 in the then mountain territories and there were, few public authorities that could take charge of roads and highways, the taxable property from which funds could be raised was so small as to be negligible and the distances so, great between settlements, the only methods of transportation, even for the necessaries of life for the most part, were wagons or pack trains, it must have been necessarily presumed that the acceptance of this grant by user by the general public was to be the usual one. The grant has been held to be one in' presentí> although floating in character until the locus in quo is established, either by legislative action as in those jurisdictions which declared all section lines public roads, by surveys by the public authorities or by the becoming definitely ’marked upon the ground by public user, either of which methods becomes an acceptance and all subsequent settlers or locators took the'land from the government subject to the easement of the public thus granted. The original act of 1869, in the first section, mentions all the different kinds of highways and recognized the common law doctrine of establishment of highways by user without declaring any specific method or enacting any new law in this regard. It will be observed that the early act, while prescribing the method by which roads might be changed, altered, or new roads laid out by the county, does not anywhere enjoin on the county authorities the duty to maintain or keep in repair the highways mentioned in the act. The — 430 — conditions at the time of this act were much the same in Wyoming as stated above at the time of the passage of the congressional act, and the five counties of the territory extended from Colorado to the Montana line, taxable property was small in amount, distances to be traveled were great, and the settlements far apart. This act remained in force until the act of March 12, 1886, which appears as Chapter 99, Laws of 1886, and was entitled an act concerning roads and highways. The first section of this act is as follows: “That all county roads shall be under the supervision of the board of county commissioners of the county wherein said road is located, and no county road shall be hereafter established, nor shall any such road be altered or vacated in any county in this territory except by authority of the county commissioners of the proper county.” This is the first legislative word in Wyoming that specifically placed any roads under the supervision of the qounty commissioners and enjoined a duty upon the county officials to maintain and keep them in repair. This act provides for the election or appointment of road supervisors and prescribes their duties, and the means for working the roads, but it is significant that wherever a duty is imposed by the act upon county officials in this chapter, it mentions county roads, and prescribes the width of county roads, etc. This act repeals in terms' th'e act of 1869-, which had become Chapter 102 of the Compiled Statutes of 1876, but did not repeal any common law-doctrine thereby, and that it still recognized that the congressional grant could be accepted by public user and that other highways existed and could be established besides those county roads provided for in the act in regard to which a duty of maintenance and repair was imposed upon the county officers is shown by Section 32, which was as follows: “When any public road, heretofore laid out or traveled as such or hereafter to be laid out or traveled as a public road, crosses any stream of water, and such stream is at any time during the year fordable where such road — 431 — crosses or shall cross the same, the said ford and the banks of the stream adjacent thereto, and the roadway or track usually traveled leading to and from such highway, to and from such ford, shall be deemed' and taken to be a part, portion and continuation of such public road and highway. Any person who shall obstruct any such ford, or the road leading thereto, * * * * shall be liable to the same penalties as for obstructing a public highway.” This clearly recognizes the right to establish public roads by travel or public user without action by the public authorities. This act clearly shows that the object sought to be accomplished by the Legislature was prescribing those roads and highways in regard to which a duty was imposed to maintain or keep in repair. And this is in accord with the authorities that a dedication for a highway which is accepted by public user, while binding upon the dedicator and those holding under him, does not require the public authorities to maintain or care for the highway. “Although the rule is almost unquestioned that user by the general public will not, in addition to binding the dedicator and consummating the dedication, bind the public authorities so that they will be responsible for its care and maintenance, this subject has presented difficulties and has caused confusion. The general rule is that the public by user cannot so accept as to bind the municipality.” (13 Cyc. 466.) The act of 1890 did not in any way change the law in this respect .and the act of 1891 merely amended the act of 1890, although it amended the first section of the act of 1890 by specifically adding to the declared public highways others beside county roads, and then specifically declares, as in the acts of 1866 and 1890, that county roads shall be under the management and control of the county commissioners and shall not be established or vacated except by them. The act of 1895, which is the present law of the state at all affecting this matter, in Section 1, re-enacts the first paragraph of the law of 1891, and adding “national” to state, territorial and county roads, then enacts, in a separate sent — 432 — ence, the provision which led to the instruction declared erroneous in the original opinion in this case: “All roads that have been designated or marked as highways on government maps or plats in the record of any land office of the United States within this state, and which have been publicly used as traveled highways, and which have not been closed or vacated by order of the ¡board of the county commissioners of the county wherein the same are located, are declared to be public highways until the same are closed or vacated'by order of the board of county commissioners of the county wherein the same are located, and the board or officer charged by law with such duty shall keep the same open and in repair the same as in the case of roads regularly laid out and opened by order of the board of the county commissioners.” This provision clearly designates such roads as are to be added to those which the county authorities are required to maintain and repair and in' no way affects other highways upon which this duty may not be imposed. It is especially significant that this act places in a separate section the provision regarding the county roads which was contained in the one section of the former act, Section 2 being as follows : “All county roads shall be under the supervision, management and control of the board of the county commissioners of the county wherein such roads are located, and no county road shall hereafter be established, altered or vacated in any county in this state, except by the authority of the board of the county commissioners of the county wherein such road is located, except as in this act provided.” Other sections of this last act as to width of county roads are substantially the same as in the former acts and the act re-enacts without change, in Section 57, Section 32 of the act of 1886 containing these significant words: “When any public road heretofore laid out or traveled as such or hereafter to be laid out or traveled as a public road,” etc! This is carried into the Wyoming Compiled Statutes as Section 2571 and is the present law of the state, clearly recognizing — 433 — the right of the public by traveling a road as a public road to accept the' congressional grant or dedication. The repealing section of this act (Section 64), after repealing each of the prior statutes regarding roads and highways, expressly enumerating them, closes with these significant words: “Any and all rights obtained by, secured to, or vested in-the public or any person, corporation or association of persons under laws existing at the time of the taking effect of this act are hereby preserved and continued in force the same as if this act had not been passed.” It is evident it was not the legislative intention to take from the public a valuable right of acceptance of the federal grant, but to preserve to it every and all rights it had. While doubtless the county commissioners could accept the federal dedication by survey and other acts fixing the locus of a road over the public domain, such method or a direct act of the Legislature is not exclusive of an acceptance by the public by unofficial user, as has been held in those states where section lines had been designated as highways. In the case of Cemetery Association v. Meninger, 14 Kan. 312, Justice Brewer, in holding a dedication could be established by user, on page 316, said: “No formal acceptance by any particular authorities is essential. The mere user by the public may be of such a character as to constitute an acceptance. Indeed such user by the public with a knowledge of the owner may be sufficient evidence of both the dedication and the acceptance. We know this doctrine is denied by some courts, but it seems to us to rest upon the soundest principles.” Although it was pointed out in the original opinion that in the case of Commissioners v. Patrick, 18 Wyo. 130, 104 Pac. 531, 107 Pac. 748, this court was “considering the question of the establishment of a highway over private lands by prescription, and that the federal grant was not involved in the case,” counsel is persistent in claiming that the Patrick case settled' by its holding and reasoning the question here involved and says: “Highways by prescription rest upon implied dedication. We believe it is univer — 434 — sally held that in all cases where highways may be or have been established by public user for the length of time required in the local jurisdictions to create the right, such right has always rested upon the supposition or presumption of an original dedication by the owner.” Counsel is in error in this statement, and does not seem to grasp the great distinction ¡between a highway by prescription and one by “dedication. Prescription is an adverse holding and under color of right. Dedication, whether express or implied, rests upon the consent of the owner, and while it is not necessary to invoke common law fictions or fallacious presumptions to sustain modern short time statutes of limitations which are well designated statutes of repose fixing time within which actions may be commenced, it is said in 37 Cyc., pages 18 and 19: “By the better opinion, however, the doctrine of prescription, as applied to highways, is based on the presumption of an antecedent exercise of the power of eminent domain by the proper authorities.” And a large number of authorities from many states are cited in the notes to sustain the text. The word “user” has been invoked in three different ways and purposes in the various cases relating to highways, first, where it is sought to hold that a highway may ¡be acquired by prescription in adverse user and under color of right, and where there is any definite entity as the county officials upon whom it devolves to assert this right as hostile and adverse to the owner, it is generally held that the evidence must show some attempt at least to assert a right by such officials, and it was so held in the Patrick case. Second^, where it is attempted to show that a highway exists, not by adverse user, but by acquiescence of the owner and user by the public, where it is held that a long user by the public without objection from the owner is necessary to^ imply a dedication as well as an acceptance by the public. And, third, where there is an express dedication and acceptance of the same is sought to be shown by user in any of the ways stated above. Only the third class has any application to the -matters involved in this case, the acceptance of the — 435 — federal grant, but counsel and some courts have not clearly separated the doctrines applied to the different classes of cases in which this matter of user is discussed. This court, in 'both of the opinions in the Patrick case, very carefully confined its statements to the matter under consideration, viz.: to questions of a highway by prescription over privately owned lands, and the numerous quotations from that case in counsels’ brief show that the count confined its statements to matters relating to prescription. The first quotation used is as follows: “The question * * * * is, can a road so located be diverted from its original course to and over lands of another, in the absence of dedication by the owner, without official action or the assumption of control by the board, and by long continued use by the public, become a public or county road?” And the next quotation: “In addition to the use of the road by the public in the absence of a dedication, express or implied, by the owner of the land, other than by his mere silence, assumption of control and jurisdiction over it by the board of county commissioners for the period of limitation should be shown.” (Italics are ours.)> This last quotation states in a nutshell the whole matter of what was decided in the Patrick case. These expressions not only expressly do not apply to matters of dedication and not even implied dedication was considered, but at least infer that in cases of dedication a road may become a public highway by public user. And so as to the other quotations from the Patrick case in each, by specific language the things said are limited to the question of prescription. The one relative to- the absence of a statute in Wyoming may serve as an example: “There has never existed in this state a statute to the effect that the mere use of a road by the public may ripen into a title or right thereto by prescription, but in some states there is such a statute, which is held to qualify the common law rule.” It is not necessary to pursue this discussion further. We hold, as in the original opinion, that there is nothing in our statutes that takes away the right of the public to accept — 436 — by unofficial usér the federal grant of rights of way over the public domain so as to bind .subsequent grantees of the government, but our statutes seem to distinctly recognize that right. As to what facts will constitute an acceptance or when such acceptance takes place are questions that will of necessity differ with each separate case, and such are to be submitted to the jury under proper' instructions of the court. A rehearing will be denied. Rehearing■ denied. PoTTBR, C. J., and Beard, J., concur.