O'Dea v. State

Reese, J. The plaintiff in error was indicted by the grand jury of Washington county for maliciously cutting down and destroying a public bridge in said county. Erom a judgment of conviction he prosecutes error in this court. On the- trial the state introduced certain documentary evidence, consisting of the proceedings in the matter of the location of the highway upon which the bridge in question was erected. It is claimed by plaintiff in error that the court erred in admitting these records, as they do not prove“ the legal establishment of the road. The records show, among other things, that the plaintiff in error, being the owner of the land on one side of the road sought to be established, tiled his claim for damages, a commission was appointed to assess the same, and a report was made allowing him fifty dollars. This sum was allowed him by the county board, and from this allowance he appealed to the district court. The cause was tried in that court, and a judgment for one hundred and eighty-five dollars was rendered in his favor, which was paid and full satisfaction thereof was entered. We think the evidence was competent, and there was no error in its admission. ■ It is claimed that the board of county commissioners had — 245 — no jurisdiction of the subject matter, and that their acts were void for the reason that no notice was given of the proceedings to establish the road as required by law. We fail to observe any such irregularities in these proceedings as would render them void, and also fail to find that “no notice had been given,” as claimed by plaintiff in error. But the record shows beyond question that he did demand and receive pay for the land taken by the road, as well as his damages growing out of its location. It seems to us that he cannot now be heard to deny the validity of the proceedings in its establishment. He cannot be heard to say there is a road and because of the road he will demand and receive $185, and after receiving the money say. there is no road and because there is none he will cut down the bridges placed thereon at public expense. In the matter of the Wells County Road, 7 Ohio State Rep., 16. Reese v. Chicago, 38 Ill., 322. It is next claimed that “If this so-called road was ever legally established, it was by the act of 1879 vacated; and this was long before the bridge in question was built.” That part of the act of 1879 referred to is as follows: “ Sec. 3. All roads within this state which have been laid out in pursuance of any law of this state or of the territory of Nebraska, and which have not been vacated in pursuance of law, are hereby declared to be public roads; Provided, That all roads that have not been used within five years shall be deemed vacated.” Comp. Stat., ch. 78. It .will be observed that the most that can be claimed for this section is, that roads that have not been used within five years shall be deemed to be vacated or abandoned by the public. It will not do to say that if any part of a road has not been used the -whole road “shall be deemed vacated,” neither will it do to say that if for five years the line of travel is deflected from a part or small portion of a road by reason of some local difficulty, that the unused portion “shall be deemed vacated.” In order to vacate a road by — 246 — non-user there must be a clear and entire abandonment of the road by the public for the statutory period.' In the language of the statute, in order to its" vacation it must “have not been used within five years.” Officers and ■courts cann< t inquire into the extent of the use, whether used much or little by the public. If used at all, the road will not “be deemed vacated.” Some of the witnesses testified on the trial that the road had not been used for more than five years. Others testified that it had been used within that time. One witness testifies that he has known the road thirteen years. A part of his testimony is as follows : ' Q. State whether or not this is used as a public thoroughfare, and has been during all these years? A. It is used for travel all the time, that is from the Rockport road. Mr. O’Dea and Mr. John Kelley uses that end. Sometimes when one of us goes to see one of them we use it. On the other end Mr. Neale has used it, and I have used it some. There is a swamp about one hundred yards long there; most of them don’t go that road; both ends of that road have been used about thirteen years. The new bridge was at the corner of sections thirty and twenty-nine, and about fifteen rods south of the corner stone. Some time ago there was a little bridge there, but that big gulch washed through. Q. In the place where the new one is now? A. Pretty near the same place. It could not miss it ten feet, I think. Another witness testified as-follows: “I reside alongside the road in question; I know this road; it has been used for travel since 1871.” Q,. Has there been any break in the travel on that road by the people abandoning it? A. Not at all, only sometimes when the people could not travel it.. Q. Do you know the bridge in question? — 247 — A. Yes, sir. ’ Q,. Do you know this place marked out on the plat as the bluff? A. Yes, sir. There you leave a straight line to get-past the bluff. Q,. Is that the only turn in the road? A. Yes, sir. Q. What effort, if any, has been made, to your knowledge, to put that old road in condition? A. I myself have repeatedly seen the commissioners to have that road put in condition at the gully and across the swamp. Q,. Where the new bridge in question was established, do you know' of any other means of getting across that gully prior to that time, and if so what was it? A. A bridge with round stringers, if I recollect right, and covered with plank. Q,. Do you know where this new bridge was constructed by the commissioners of this county? A. Yes, sir, I do. Q. Where was that bridge placed as to the one you • have just spoken of? A. As near to the old one as you could guess. It was within a few feet. * * * * •» * * Q,. Just refer to that plat and state how much of that road has been in use and for what length of time, by what class of people, and for what purpose? A. Commencing at the county line between Washington and Douglas counties, the whole length of that road has been traveled, except we diverged from- a straight line to the east instead of to the west. From the county line, part of the way, it was laid out by the joint action of Douglas county and Washington county commissioners. It runs north almost to the section line and then turns east to get around the bluff, about thirty rods to the east, and then — 248 — comes back to the line. The change that has been made is, that it. turns to the west at that same point instead of to the east, about forty or fifty rods, close to the corner between sections nineteen and twenty, about thirty rods south of the center between nineteen and twenty.' There is a road all the way up and then up the old river bed that has been traveled for the last nineteen or twenty years. The foregoing evidence, if true, shows such a continued use by the public as would prevent the vacation of the road by non-user.- The question of the weight of evidence was for the jury. Their verdict on questions of fact will not be molested unless clearly wrong. There was sufficient evidence to sustain the verdict on that point. The next point to which our attention is called by plaintiff in error is, that the court erred in excluding certain documentary evidence offered by him in his defense. The proposed evidence is not made a part of the bill of exceptions, and is not set out in the transcript. The presumptions are in favor of the correctness of the proceedings in the district court. Error must affirmatively appear. It does not so appear. Objections are made to certain instructions given to the jury by the court on its own motion, but the plaintiff’s brief fails to point out where or how the court erred in giving said instructions. We have examined them and fail to find wherein they are open to criticism. In our opinion they are fully as favorable to the plaintiff in error as he could reasonably demand. Plaintiff in error requested the court to give the following instruction: “If the jury believe from the evidence that the defendant demolished, cut down, or destroyed the bridge in question, and you further find that defendant believed at the time that no county road was in existence where the bridge was erected, and that the same was erected on'defendant’s'land, and the defendant believed at that time that he had a lawful right to take and destroy said — 249 — bridge then you must find the defendant not guilty.” This was refused, and the defendant excepted to such refusal. The testimony all shows that one-half of the bridge was on the land of plaintiff in error, and the other half on the land of John Kelley; that he knew a road had been established there and he had received compensation therefor; that the county had caused the bridge to be constructed on the line of the road, and that the bridge was on said line; that he had threatened to cut it down, and had solicited others to help him do so and they ha,d refused. It is not claimed and it cannot be claimed from the evidence that he was ignorant of any of the facts in the case. He is conclusively presumed to know the law. There was no evidence upon which to base this instruction, and it was properly refused. The second instruction given by the court on its own motion fully and clearly stated the law of the case on that point. The judgment of the district court is affirmed. Judgment affirmed." The other judges concur.