73 Neb. 826 | Neb. | 1905
This was an action by a road overseer for an injunction to prevent the defendants from obstructing a public highway. The existence of the highway is disputed. The defendant Dina Keller is the owner of the north half of section 23, township 8, west of range 16, in Kearney county, Nebraska, ivhich tract is bounded upon the north by the main channel of the Platte river. The road which it is alleged that defendants obstruct lies along the bank of the Platte river upon the north boundary of this tract. It appears that for over 20 years the public travel coming and going from the west toward the bridge across the Platte near the city of Kearney, on the south side of the Platte river, has been across the lands of the defendant, Dina Keller. The land was open and unfenced until 1887, when a slight fence was erected three or four rods from the river bank, along the north side of the land, by one Williams who was then the owner of the land; but this fence was not maintained, and was soon broken down, destroyed and much of it carried away. It remained open
We are of the opinion that the evidence fails to establish a continuous and uninterrupted use of the strip of ground by the public for ten years, adverse to the rights of the owner of the land. Prior to 1887 the land was uninclosed, and the public had been accustomed to travel at will over the premises. This travel was permissive, and could not ripen into a prescriptive right. Shaffer v. Stull, 32 Neb. 94; Graham v. Hartnett, 10 Neb. 517. The slight fence that was erected in 1887 was soon removed,-and the public continued, as before, to go across the land in the same general direction without confining itself to any single and definite highway. It was not until the fence was rebuilt in 1894 that the strip of the land in controversy was exclusively traveled over, and the evidence shows that the travel was only confined thereto for a very short period of time, and that the main portion of the travel since that time has been for the greater distance on the south side of the defendants’ fence. Before the erection of the defendants’ fence the travel varied from place to place north and south, and was in no definite, particular way or track; and the lands being open and uncultivated no prescriptive right could accrue. This action Avas begun on September 11, 1903. At that time ten years had not elapsed since the time when the defendants erected the fence, and, as we have seen, no prescriptive right could accrue before that time. But, even conceding, for the purpose of argument, that the land was not open and uninclosed in 1894, the evidence fails to disclose that there had been a user of the strip of land in controversy, or of any particular or defined way or track, uninterruptedly and without substantial change for ten years prior to the beginning of the action. This being so, no highway has
We recommend that tbe judgment of the district court be reversed and the cause dismissed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Reversed.