Van Wanning v. Deeter

Albert, C. This is an appeal from a decree enjoining the appellant as road overseer from removing a fence which the appellee had commenced to build on and along that portion of a section line forming the north boundary of a quarter section of land, to which the appellee holds the title in fee. The only question in the case is whether there is a public road along that portion of the section line. If there is, the appellant, in the discharge of his official duty, had a right to remove the fence, and the decree should be reversed. While there is no evidence that the road was ever formally established and opened by the county authorities, [283] we think the evidence leaves no room for doubt that the road was established by dedication and acceptance. The evidence shows that the earliest settlers in that locality found the strip of land in question in common use by the public as a highway, and that such use has continued without substantial interruption ever since, until shortly before the commencement of tbis suit, when the appellee interrupted it by the erection of the fence in question. Prior to 1892 it appears to have been kept in condition for travel by the private efforts of those using it. In that year the public authorities put in a small culvert, and subsequently had some labor performed on it at the public expense. It was in common use as a highway when the person under whom the appellee claims title took title from the United States. It seems to us that the case falls within the doctrine announced in Streeter v. Stalnaker, 61 Neb. 205. There, in dealing with a similar case, the court said: “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.’ U. S. Rev. St., sec. 2477. 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 was a standing offer of a free right of way over the public domain, and as soon as it was accepted in an appropriate manner by the agents of the public, or by the public itself, a highway was established. McRose v. Bottyer, 81 Cal. 122. What the Hamilton county authorities did Avas perhaps insufficient to show the establishment of a road under the general road law, but was enough, we think, to indicate an acceptance of the government’s bounty, and that is all that was required to create an easement. * * * In this case there was not only evidence of user, general and long continued, but also proof that the public authorities had assumed control over the road and had worked and improved a portion of it. Both facts were competent evidence tending to show an acceptance [284] of a dedication.” One point made clear in the foregoing is that the acceptance of the congressional grant could be shoAvn, not only by acts of the public authorities, but by the acts of the public itself. In the case at bar, as in that case, there is evidence of user, general and long continued. The right of the public to the easement was never challenged until after it had been enjoyed for more than 80 years. This, avc think, is amply sufficient to sIioav an acceptance by the public of the congressional grant, and that the party under AAdiom the appellee claims title took subject to the easement. See Cassidy v. Sullivan, 75 Neb. 847; Eldrige v. Collins, 75 Neb. 65. In this case, as in the Streeter case, supra, it may be said that the travel along this road deviated more or less from time to time, but the evidence justifies the conclusion that such deviations Avere neither substantial nor permanent, and that through all those years a portion of the road Avas used some of the time and all of it Avas used a part of the time. 1. Public Lands: Evidence. Record reexamined, and found not to sustain the assumption in former opinion that the land in question was a part of the public domain at the time of the passage of the act of congress in 1866 granting right of way over public land for highway purposes. 2. Highways: Injunction: Burden oe Prooe. In an action to restrain a road overseer from removing plaintiff’s fences from land claimed by such overseer to be a highway, the plaintiff alleging that no highway existed, and the defendant alleging that there was a lawfully opened road at the point in dispute, the burden was on defendant to establish the existence of the highway. Henry v. Ward, 49 Neb. 392, followed. [284] It is recommended that the decree of-the district court be reversed and the cause remanded, Avith directions to dismiss the suit. Dtjffie and Jaoicson, 00., concur. By the Court: For the reasons stated in the foregoing opinion the decree of the district court is reversed and the cause remanded, Avith directions to dismiss the suit. Reversed.