98 Neb. 180 | Neb. | 1915
Lead Opinion
The defendant, who is plaintiff in error here, was found guilty in the district court for Otoe county on the charge of nuisance by obstructing a public highway, and has brought the case to this court by petition in error.
It would seem that if the field notes of the commissioner are intelligible, as they are alleged by the prosecution to be, there would have been no difficulty in establishing beyond question how far the road, which was surveyed by the commissioner and adopted by the public, extended from the section line into the defendant’s land. The distance from the section line of the fence which the defendant erected could also be established by actual measurement. There was no attempt at definite and exact evidence upon these points. The prosecution would ask a witness whether the defendant’s fence infringed upon the road, and when the witness answered that he had been along there some years before, but paid no attention to the matter and could not state how far, he was asked and allowed to give his best judgment. Under such circumstances we have all manner of estimates in regard to the distance.
Mr. Fritz Hillman was a witness for the prosecution. His evidence is perhaps as definite and reliable as any. He had been acquainted with the road for 40 years, and had traveled over it “thousands of times.” He testified: “When I first knew it, I didn’t know exactly where it was. Afterwards it was farther west, probably six or eight or ten rods, something in that neighborhood, from one back to another. That was prairie at that time, as near as I can recollect. Then the man that owned it broke up that bottom, and he naturally crowded the road back to the creek. Whether he did that or the neighbors, I don’t know. Whoever traveled it there at that time crowded the road back to the creek where this little bend comes now. As long .as I can recollect, there has been trouble right, there. At that time it was sloping down towards the creek. Whoever did it, I don’t know; somebody worked it and leveled that off
From this and other similar evidence the jury were asked to find the location of the public highway and determine whether the defendant’s fence obstructed the same.
There is also evidence that the creek at this point has continually washed away its banks in the defendant’s lands during the 40 or more years since the county board procured their commissioner’s field notes as to the location of the road. If this* is true, and the place of travel was moved from time to time, still, if the washing was irregular so that the line of travel remained permanently in any one locality for the space of ten years, the public, if their use of the line of travel excluded the defendant’s use of the land, might acquire a right of way by prescription. Even under such circumstances a serious question might arise as to how far beyond the line of travel the public right extended. Under the evidence in this case it is imposible to find with any degree of certainty how far this erosion of the banks of the creek extended, or even whether
Formerly criminal law was used as a method of determining the locality of roads under doubtful circumstances, But. that is not the policy of our law. It appears to be conceded that the road extends farther into defendant’s land than it did as it was formerly traveled by the public. As to how much farther it extends into defendant’s land is, so far as this evidence goes, entirely indefinite. It is manifest from this evidence that the defendant and county authorities disagree in good faith as to where this road actually is. Under such circumstances, if the county authorities had proceeded to establish the road and have its boundaries definitely determined and located and made a matter of public record, and the defendant had thereafter wilfully obstructed the road so established, he might, under our statute, have been prosecuted for nuisance in obstructing a public highway; but there is no evidence in this record from which it might be found, beyond a reasonable doubt, or even with any plausibility, where the limits of this road really are. Under such circumstances, it cannot be said that the defendant has been shown to be guilty of crime beyond a reasonable doubt.
The judgment of the district court is therefore
Reversed.
Dissenting Opinion
dissenting.
Defendant was accused by the state of unlawfully obstructing a highway by means of a fence. The jury found him guilty beyond a reasonable doubt. The conviction should be affirmed. The existence and continuous use of the highway since 1873 is established beyond reasonable
The doctrine of the majority that it is not the policy of the law to determine in criminal proceedings the location of indefinitely located roads is a radical departure from the statutes and from the former decisions of this court. When the legislature speaks by means of a valid enactment, it declares the policy of the law, and in that respect leaves nothing for the determination of the courts. Obstruction of highways is repeatedly denounced by the Criminal Code as unlawful. Violators of the statute “shall be fined in any sum not exceeding five hundred dollars,”
In my opinion the county attorney, the trial court and the jury performed their duties in this case.
Concurrence Opinion
concurring.
I am obliged to vote for tbe majority opinion, although I regret to do so. The trouble is that it is a criminal case, and, of course, the rule is that the defendant may not be found guilty unless the evidence shows his guilt beyond a reasonable doubt. I do not think any one ought to be allowed to exercise his guess as to where the road is and then be permitted to fence it up. If there is a road there which people travel, then that fact alone ought to be énough to establish the “road” and require its maintenance. It should then be the business of the landowner and everybody else to keep out of the road with any sort of obstruction until there is an adjudication in a civil case to the effect that it is not the road. It is a technical rule that permits the defendant to get in and occupy the road and crowd the public out of it and make it dangerous to travel, and yet not be punished for it. I am in favor of the adoption of a rule that, no difference where the boundaries of the road may be actually shown to be by a survey, it is the duty of everybody to keep off the road with any sort of fence or obstruction. I would have every road a “road” as long as it was traveled and until the court in some sort of civil case got in and said that it really was not a road. I would make a road “a sacred institution” and have everybody keep hands off of it. As it is presented, this is a criminal case, and the inexorable rule is that in a criminal case, before the defendant can be found guilty, the evidence must show his guilt beyond a reasonable doubt. I do not like to make a criminal case out of it, but it is a criminal case, and there is no help for it. Every road should be a road to Rome, and it should be kept open alike to the citizen and the soldier. I would make it sacred.