City of Topeka v. Russam

— 556 — The opinion of the court was delivered by Valentine, J.: This was an action brought by B. D. Russam against the city of Topeka, for the recovery of certain real property and for damages. The damages prayed for were for the unlawful detention of the property and for certain alleged trespasses. The defendant answered to the plaintiff’s petition by filing a general denial; and upon the pleadings a trial was had before the court, without a jury, which trial resulted in a judgment for the defendant. Thereupon the plaintiff demanded another trial, by virtue of § 599 of the civil code. The plaintiff’s demand was granted, and the defendant excepted. Subsequently the defendant filed an amended answer, denying that it had committed any trespass upon said premises, denying that it then or ever had unlawfully withheld possession of the premises from the plaintiff, alleging that a portion of the premises, to wit, forty feet in width across the north side, was a public road, and that if the plaintiff had any interest therein it was subject to the right of the public to use and travel the same as a public highway; and as to the residue of the premises, the defendant, in its answer, disclaimed all right or interest. A reply, which was substantially a general denial, was filed to this answer. At the April term, 1882, of the court, the action again came on for trial before the court, a jury being waived. After the testimony had been introduced and the case taken under advisement by the court, and during the same term of court, the defendant made application to have the case opened and for leave to introduce further testimony. This application was taken under advisement by the court. No further proceedings were had in the action until the January term, 1883, of said court, at which term the case was again called. The defendant thereupon demanded that the case be tried without regard to the former proceedings, but the court, over the objection of the defendant, proceeded with the case, beginning where it had left off at the April term. The motion for leave to open the case and introduce further testimony — 557 — was overruled. The court stated in writing its conclusions of fact found and its conclusions of law separately. A motion for a new trial was made and overruled, and judgment given for the plaintiff for possession of all the premises described in his petition, and for $150 damages, and costs of suit. The defendant, the city of Topeka, now brings the case to this court, and asks for a reversal of said judgment. The testimony introduced on the trial is not brought to this court, and hence the findings of the trial court must be regarded as correct statements of the facts of this case. The facts, stated briefly, are substantially as follows: In 1859, in pursuance of chapter 111 of the Laws of 1859, a territorial road was located and established from Quindaro to Salina, by the way of Lawrence and Topeka. A somalí portion of said^road — a few rods in length — ran over the premises now in dispute, and the owner of the premises released to the public the right-of-way over the same, in accordance with the provisions of said chapter 111. No formal order opening the road was ■ever made, nor any order other than the passage of the statute authorizing the location and establishment of the road, and the location and establishment of the road in pursuance of the statute. It was the general understanding of the people and a matter of public notoriety within the city of Topeka from 1859 up to the present time, that the said road was located and ■established over the premises in dispute. In addition to the foregoing, it should also be stated that, up to 1869, the premises over which that portion of the road now in dispute was located, was open, uninclosed, unimproved prairie land, with no obstruction or hindrance to prevent travel from passing over the same; and it remained in that condition up to 1880, except that a single ditch was dug by a railroad company across the established road. Immediately upon the establishment of this road the public commenced to travel thereon, and to use the same as a public highway. The line of travel, however, did not always conform to the exact line of the road as laid out, but up to 1869 there was some actual travel over — 558 — the established line of that portion of the road now in dispute. The road as a whole has been continuously used and traveled as a public highway ever since it was first established in 1859, and the travel has followed the established line of the road, except in a few places and for short distances. In 1869 a railroad company, while constructing its railroad upon and near the premises in dispute, dug a ditch across that portion of the road now in controversy, and by this means the public travel was forced to go around this portion of the road to find a suitable crossing; and from 1869 up to 1880 there was no actual travel over this portion of the road, the travel leaving the road a short distance before reaching this portion of it and going around the ditch, and then returning into the established road after passing the ditch. The travel during this time went over lands over, which the public had no right-of-way. tn 1880 that portion of the road now in dispute was again prepared for travel, and it has ever since been used by the public as a public highway. Upon these facts the court below found in favor of the plaintiff and against the defendant, as before stated; and it made this finding upon the authority of that portion of chapter 150 of the Laws of 1879 which reads as follows: “Any state road or part thereof, which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of ten years after the passage of the act authorizing the same, shall be vacated, and the authority for opening it be repealed for non-use.” Was this decision of the court below correct, or was it erroneous? It would seem to us that it was erroneous. There can be no question that said road was legally located and established in 1859, and there can scarcely be any question that it was also opened for public travel at the time. The road was generally traveled, and there was nothing to prevent its being traveled over the premises now in dispute; and even on these premises there was some travel, and the bulk of the travel on these premises left the established line of the road only for a short distance. There was no law at — 559 — that time requiring that the road should be formally opened,, and there was no law or necessity requiring that anything-should be done for the purpose of opening the road for travel that was not done. Indeed, the road was virtually opened. It was located and established in full compliance with the-law; and there was nothing to prevent the public from traveling over it. It was not closed or inclosed. It was not shut up. It was not obstructed. And if the road was not closed or inclosed or shut up or obstructed, it must have been opened;: and a road that is open cannot well be an unopened road. The road in the present case remained open for ten years after-its location and establishment before the railroad company.' dug the ditch above mentioned; and we would hardly think, that it could even then be called an “unopened ” road, within, the meaning of ch. 150 of the Laws of 1879. (Stickel v. Stoddard, 28 Kas. 715; Wilson v. Janes, 29 Kas. 233, 251, and cases there cited.) Our statute upon this subject is taken substantially from a similar statute in Ohio; and in Ohio it. was decided, in 1850, in the case of Peck v. Clark, 19 Ohio, 367, that the statute applied only to roads that had been authorized but never opened. See also Champlin v. Morgan, 20 Ill. 181. In the case of Stickel v. Stoddard, 28 Kas. 721, 722, it is said: “We would think that said section 1 of the statute was intended to apply only to cases where it would seem, from- the-acts and omissions of the public, that the public intended to-wholly abandon the use of the road, and not to cases where-the travel merely passed out of the road for the temporary-purpose of avoiding an obstruction.” Besides, the statute relied upon provides that — “No state road, or part thereof, which has heretofore or may hereafter be authorized, which shall remain unopened for . public use for the space of ten years after the passage of the-act authorizing the same, shall be vacated, and the authority for opening it repealed for non-use.” Now the road in the present case was not only “ authorized,” but it was also located and established, and it did not “remain unopened” for public use for the space often years “after the — 560 — passage of the act authorizing the same;” but it in fact remained open for public use for the space of ten years after the passage of the act authorizing the same; for during the whole of that period of time the established, road over the premises in controversy was open, uninelosed and unobstructed prairie, and there was nothing to prevent the traveling public from passing over it; and if the road was once opened, what would -be the effect of afterward repealing “the authority for opening it”? Indeed, it would seem that this whole provision of the statute with reference to state roads, applies, as was decided in Ohio, only to roads that have never been opened. It must also be remembered, that in this case the owner of the ¡premises gave to the public the right-of-way over the premises, in accordance with said chapter 111 of the Laws of 1859. But it is said by counsel for the defendant in error that this could not have been so, for the reason that the instrument giving such right-of-way was executed by the owner ■of the premises alone, without the consent of his wife, and that the property was his homestead. Now in answer to this, it maybe said: (1) That the owner of the premises held 160 acres, while in 1859 only 80 acres were exempt; (2) .the exemption was by statute only, and could be repealed or modified by statute; (3) that the statute providing how the right-of-way might be given and the statute providing for a homestead exemption were enacted by the same legislature and on the same day, and both acts must be construed together, and both held to have force and operation, whenever such can be the ease. It is our opinion that the court below erred in holding that that portion of the road which passes over the plaintiff’s land was vacated by virtue of the provisions of chapter 150 of the Laws of 1879. It is our opinion that whenever a state road is located and established, and everything else is done which either the law or necessity requires to be done in order to render the road open for public use, the road is not then an “ unopened” road, within the meaning of chapter 150 of the Laws of 1879; and the fact that after the road has been established for ten years the — 561 — public then, and for another ten years, passes out of the established road for a short distance, and then returns again to the road, will not vacate that portion of the road not traveled. There are several other questions raised by the plaintiff in error, and several matters assigned for error which we have not yet considered; but as we have considered the case upon its merits, and decided it upon its merits, we think it is wholly unnecessary to consider the other questions. No decision that we might make upon the other questions would affect the decision which we have already made upon the merits of the case. The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the defendant and against the plaintiff for costs. All the Justices concurring.