Streeter v. Stalnaker

Sullivan, J. The only controverted question in this case is whether there exists a highway across a quarter section of land occupied and claimed by the plaintiff, William H. Streeter, by virtue of an entry made by him in 1894, under the timber culture act. John Stalnaker, who is the overseer of road district No. 51, in Hamilton county, asserts the existence of a public way over the land, and asks that the plaintiff be enjoined from obstructing it. The court, decided in favor of the defendant, and from a careful examination of the record we are well satisfied that the decision is warranted by the proof. In 1877 the county board of Hamilton county, in compliance with a petition presented to it, appointed J. R. Thomas a special commissioner to inquire into the expediency of .establishing a road leading to the wagon [206] bridge across the Platte river south of Central City. Mr. Thomas employed chainmen and an axeman and proceeded to survey, plat and mark out a road over the land now in controversy. His report was filed with the county clerk and was accepted by the county board. After-wards, in the same year, culverts were built by the road overseer to make the road passable; and it has been traveled ever since to some extent by people going to Central City to trade or to Hoard’s ranch with grain. “The road,” in the language of one witness for the defendant, “has been traveled constantly, not all of the time by all of the people, but by a portion of the people all the time.” It is doubtless true that the travel has diverged to some extent from the line of the road as located by Thomas, but we think the evidence quite sufficient to justify the conclusion that the deviation was not substantial. In order to show that the road was established by user it was not necessary to prove an exact adherence to the line of the survey at all points. It Was enough to show that there was no permanent or material deflection. City of Beatrice v. Black, 28 Nebr., 263. It is said that the public could not acquire an easement by user in the land in question because it belonged to the general government, which is not affected by the statute of limitations. As we understand counsel for defendant, they do not claim that the public acquired any rights by adverse occupancy of the disputed strip. Their contention is that the road was established by dedication and acceptance; and this Ariew of the matter Ave think is correct. In 1866 congress passed an act declaring that “the right of way for the construction of highways over public lands not reserved for public uses, is hereby granted.” IT. S. Revised Statutes, sec. 2-177. By this act the government consented that any of its lands not reserved for a public purpose might be. taken and used for public roads. The statute Avas a standing offer of a free right of way over the public domain, and [207] as soon as it Avas accepted in an appropriate manner by tbe agents of tbe public, or the public itself, a highway was established. McRose v. Bottyer, 81 Cal., 122. What the Hamilton county authorities did was perhaps insufficient to show the- establishment of a road under the general road law, but Avas enough, we think, to indicate an acceptance of the government’s bounty, and tliat is all that Avas required to create an easement. Vance v. Burlington & M. R. R. Co., 12 Nebr., 285; St. Joseph & D. C. R. Co. v. Baldwin, 103 U. S., 426; United States v. Brooks, 10 How. [U. S], 442. In this case there Avas not only evidence of user, general and long continued, but also proof that the public authorities has assumed control over the road and had worked and improved a portion of it. - Both facts were competent evidence tending to show an acceptance of a dedication. Adams v. Iron Cliffs Co., 78 Mich., 271; Witter v. Damitz, 81 Wis., 385; State v. Waterman, 79 Ia., 360, Waggeman v. Village of North Peoria, 160 Ill., 277. The judgment of the district court being supported by sufficient evidence is Affirmed.