Larkin v. Harris

Cole, J. — The facts were found by the court, and, so far as necessary to state them, are as follows: In October, 1817, a road, known as the Wood’s Mill road, running from said mill in Van Burén county to Bloomfield in Davis county, was duly established, and was at once opened and used for public travel. This road runs diagonally through section, thirty-one, owned by the defendant, who is road supervisor. A person traveling this road from Bloomfield to Wood’s Mill will reach the north-west corner of s'ection thirty-one just one-fourth of a mile south from Bloomfield, and will diagonally cross said section from the north-west corner to the south-east. In October, 1850, another road was duly established, leading from Bloomfield to Memphis, and was directly after that opened and used for public travel. This road struck the line of the other road near the center of the north-west quarter of said section and followed that line to the center of the section; thence it ran south of south-west, leaving the other road fo the east of it, and crossing the south line of the section about one-fourth mile west of the south-east corner. Afterward these roads were so changed as that they both followed and occupied the same line from the center of the section to the south line of it, near the south-east corner. For more than ten years before September, 1865, the travel on said roads, in the north-west quarter of said section, and where both roads were originally laid on the same line, had been diverted from the line established by reason of the owner of a field there having set out his fence so as to enlarge his field. The line of travel was afterward and during said ten years twice changed by reason of further enlargements of the field. In September, 1865, the defendant having given notice that he would then ask that so much of the Wood’s Mill and Bloomfield road as runs diagonally through section thirty-one be vacated [95] and the road changed so as to run on the west and south lines of said section, the board of supervisors made an order accordingly ; the change was to be made at the costs of this defendant. He promptly made the change, whereby the road runs around instead of diagonally through the section, increasing the distance about one-third of a mile. The defendant also built his fences across the old road, and refused to remove them after being notified so to do by these plaintiffs. It will be seen from this statement of facts that the only real question is, whether an order duly made vacating or changing one of two roads established on the same line, will operate to vacate or change both ? The learned judge of the circuit court held that it would. In this opinion we do not concur. There were two roads legally established after due notice given respecting each. They have one terminus in common. The other termini are remote from each other. By the original orders establishing the two roads they occupied the same line or common ground for near one-fifth of a mile; and by subsequent changes this distance was increased to near four-fifths of a mile. It was entirely competent for the board of supervisors, upon proper notice, to change one of these roads without changing the other. Persons alone interested in and living on the line of one of these roads, outside of their common ground, would not, however, be likely to observe a notice for, or to attend the board or a court to resist proceedings in respect to the other. So that an order made upon due notice respecting one road, if it could affect the other, would work a surprise upon persons interested alone in the latter, and upon the public. As well might it be said that the vacating of a road first laid, shall operate to vacate at the crossing, so much of any road subsequently established as runs over and across it; for, if the vacating operate to annul the subsequently established road it will do so at a‘crossing, transverse or diagonal, as well as where it runs along it. It seems to us that the order of the board of supervisors vacating or changing the one road should be limited to the road it purports to change, [96] and which alone the notice given authorized it to change. We see no objection to the form of the action. Rev., § 3767. At all events no objection to it was made in the court below. In our view the diversion of travel from the true line by reason of the fencing and enlarging the field does not affect the question. If the public acquired any rights by user, they would apply equally to both roads. Reversed.