Brandt v. Olson

Epperson, C. Plaintiff owns the southeast quarter of the southeast quarter and the west half of the southeast quarter of section 2, town 19, range 6 west, in Harlan county, Nebraska. Defendant, a road overseer, believing that a highway existed along the section line south of plaintiff’s land, and also that another road running north and south had been established close to the west line of said southeast quarter of the southeast quarter, removed plaintiff’s fence posts obstructing the alleged highways, and plaintiff brought this action to enjoin defendant and his successors from interfering with plaintiff’s use thereof. The district court found for defendant as to the section line or east and Avest road, but enjoined defendant as to the north and south road extending through plaintiff’s forty. Both parties appeal. 1. We have carefully read the record, and are convinced that the learned trial court reached the only conclusion Avarranted by the evidence as to the section line or east and Avest road. It is unnecessary to set out the evidence or the substance of it. We think the judgment on plaintiff’s appeal should he affirmed. [614] 2. Defendant complains of the decree enjoining him from removing obstructions on the north and south road. The evidence shows that in 1885, and prior thereto, the public had traveled through the southeast quarter of said section 2 in a northeasterly and southwesterly direction, entering the southeast quarter of the southeast quarter at a point near the southwest corner thereof, and- leaving the forty about 200 yards east of the northwest corner. At that time the land was wild, unbroken prairie. In 1885 or 1886 the owner thereof broke out the prairie and prepared to farm part of the forty, and caused the travel to turn to the west on the west side of the broken field to a point where the road is now located. On the west of the road the land remained open prairie until about 1893. Under the decisions of this court, we consider that up to the time of the improvement of the land on both sides of the traveled road there was no adverse user, and that the actual use thereof by the public with the consent of the owner was not evidence of an intention on the part of the OAvner to dedicate the particular strip of land in controversy to the public as a highway. Bleck v. Keller, 73 Neb. 826; Engle v. Hunt, 50 Neb. 358. It is fairly well established that at least as early as 1893 the land on the west side, except about 10 rods at the south end thereof, was improved by the owner, Avho ploAved and cultivated up to the alleged higliway. The evidence of many Avitnesses, including some calk'd by plaintiff, clearly establishes the fact that plaintiff’s grantors recognized said road as a public higliAvay for more than 10 years by cultivating the land on either side, except the 10 rods hereinafter referred to, and by leaving for public travel the strip in controversy, and that during the entire period of time the public accepted and used it as such, Avith full knoAvledge and acquiescence of the plaintiff and his grantors, until about the time this suit Avas instituted in 1905. At the south end, Avhere the north and south road enters upon the highway between sections 2 and 11, the travel [615] has encroached for about 10 rods upon the other lands of the plaintiff. It seems that in turning the corner, as is often the case, the travel would turn before the intersection was reached. When the travel coming from the north reached a point' about 10 rods north of the intersection with the east and west road, some of the travel would turn to the southwest and enter the section line a few rods west of the corner, and some would turn to the southeast and enter the section line road a few rods east of the corner, thus making a Y shape appearance in the traveled paths. In the present case, nothing prevented the travel from thus cutting short the corner until 1901, when it was stopped and thereafter confined to the narrow strip in controversy throughout its entire length, intersecting the east and west road at right angles. Apparently the most serious question here is to determine whether or not the diverging from the narrow strip at the corner will prevent the acquisition of the entire strip or any portion of it. There would be no difficulty in arriving at the conclusion that a right to use the road as a public highway had been acquired by implied dedication, Avere it not for the divergence of the travel at the point where the road intersects the section line. Apparently the trial court granted the injunction because of such divergence. The south end of the road in controversy was neArer closed. Some of the traveling public used it all the time, and all since 1901, Avhen the OAvner of the land confined the travel to the straight line.. It is true the cut-oils at the corner were abandoned in 1901, but it does not appear that the travel straight to the corner or section line was ever discontinued or interfered with. In Rube v. Sullivan, 23 Neb. 779, it is said: “Ten years’ uninterrupted use will create the presumption, but a much shorter period Avill be sufficient where the act of the owner from which the dedication is inferred, is clear and unequivocal, and accompanied or immediately followed by public use. * * * But, unless there is some clear and unequivocal manifes [616] tation of an intention to dedicate, there will be no presumption of dedication until after the lapse of 10 years.” See, also, Rathman v. Norenburg, 21 Neb. 467; Shaffer v. Stull, 32 Neb. 94; City of Omaha v. Hawver, 49 Neb. 1; Engle v. Hunt, 50 Neb. 358. Witness Smith, who owned the land from 1892 to 1901, testified that he broke out and cultivated the land on the west side of the road, leaving the strip in controversy for the sole use of the public, intending that it should be used as a highway. His successors in title (except plaintiff) never changed its use. The diversion of the travel at the south end of the road was not a substantial variance which would defeat the presumption that the owners of the fee dedicated the land to the public. The public authorities never improved or repaired the road, but did work that part of the highways connected with this road. The road north of this, which was improved by the public officers, was without value, except when used in connection with the road in controversy. Moreover, the evidence shows that the road needed no improvement. Undoubtedly the improvement or repair by the officers of a road claimed to have been dedicated to the public would be strong evidence tending to show an acceptance, but, where no improvement is necessary, the absence of such evidence will not defeat the presumption of a dedication, which arises from the fact that the public have used the road for a period of 10 years. From 1893, plaintiff’s land ceased to be wild uncultivated prairie, and the owners, by their conduct in leaving the road between their improved fields, dedicated it to the public, and the public have accepted the same by using it for more than 10 years. We therefore recommend that the judgment of the district court be affirmed on plaintiff’s appeal, and reversed on defendant’s appeal, and the cause remanded, with directions to dissolve the injunction restraining defendant and others from using the north and south road intersecting the east and west road at right angles. Duffie and Good, CC., concur. The following opinion on rehearing was filed January 8, 1908. Former judgment adhered to: Highways: Pkescbiption. Where a highway is established presumably upon a section line, and used for ten years or more by the public without objection made by an adjoining landowner, and thereafter it becomes known that the road is in fact partly upon his land and away from the section line, held that the right of the landowner to recover the strip of his land thus used is barred by prescription. By tlie Court: For the reasons stated in the foregoing-opinion, the judgment of the district court on plaintiff’s appeal is affirmed, and reversed on defendant’s appeal, and the cause remanded, with directions to dissolve the injunction restraining defendant and others from using the north and south road intersecting the east and west or section line road at right angles. Judgment accordingly.