104 P. 531 | Wyo. | 1909
Lead Opinion
The defendant in error (plaintiff below) brought this action in the District Court of Sheridan County against the plaintiff in error (defendant b.elow) to enjoin the county from interfering with or. removing a fence theretofore constructed by him across a road known as the Soldier Creek road. A temporary injunction was allowed, which upon issue joined and trial thereon was made perpetual. The county brings the case here on error.
It is assigned as error first. That the decision and judgment are contrary to law, and, second, that the decision and judgment are not sustained by sufficient evidence and are contrary to and against the great weight of the evi-. dence. For convenience these assignments will be considered .together.
From the record it appears that as early as 1883 Patrick was and continuously thenceforth has been and is now the owner in fee of Sections 29 and 30 of Township 56 North of Range 86 West of the Sixth Principal Meridian, formerly in Johnson County, but since the time of its organization in 1888, in Sheridan County, Wyoming.
The evidence tended to show that on February 4, 1886, there was filed in the office of the County Clerk of Johnson County a plat and the field notes of the County Surveyor of that county of a survey theretofore made by him of the Soldier Creek road and which plat and field notes show the location of the road as surveyed to be on the north boundary and along the section line of said sections 29 and 30. Owing to the fact that there was a hill or bluff upon the north boundary of section 30, the road as actually followed by the public from the time of such survey until closed by Patrick, diverged to the south of the section lines over and across Patrick’s land and around the base of the hill. Patrick’s north fence was parallel to, south of and followed the road in its divergence around the hill. The road was a thoroughfare and one of the
The county did not defend upon the ground of a legally located highway, that is, a highway located under the provisions of the statute, but on the ground that the road had become a lawful public road by user for more than the period of ten years, that being the time limited by statute within which an action for the recovery of real estate mav be brought after the cause of action accrues. (Sec. 3451, R. S. Wyo. 1899.)
Patrick claims that when he discovered the true north line of his land by reason of the survey he called at the room where the Board of County Commissioners held their sessions and conversed with the individual members of the Board, and was told by them to move his fence to the section line. There is no record evidence of any official action of the Board in this matter, and that being so, there was no authority vested in Patrick by the verbal consent of the individual members of the Board. (Schwerdtle v.
There is no question here raised as to the validity of the road as originally surveyed along the section line. The question presented by the record is, can a road so located be diverted from its original course to and over lands of another, in the absence of dedication by the owner, without official action or the assumption of control by the Board, and by long continued use by the public, become a public or county road? It will be observed that the part of the road here involved, that is, in so far as it run south of the section line across Patrick’s land, had been so used by the public for 19 years without objection by him before he moved his fence. The land was wild and unenclosed, and while there is some conflict in the decisions, we are of the opinion that this long period of uninterrupted use by the public was not of itself sufficient to vest title by prescription. The great weight of authority supports this view and is based Upon the proposition that such user, in order to ripen into title, must in some way be adverse to occupancy or actual as opposed to constructive possession, under a claim of public right known to the owner. (22 A. & E. Ency. of Law, 1221, 1222.) The record does not disclose, nor is it here contended, that the part of the road involved was the only practical way for a road at that point, so as to bring it within the exception to this rule, but, on the contrary, it shows the travel of a road by the public in that vicinity, since the fence was moved, upon a different line and 'as originally surveyed.
In addition to the use of the road by the public in the absence of a dedication, express or implied, by the owner of the land, other than by his mere silence, assumption of control and jurisdiction over it by the Board of County Commissioners for the period of limitation should be shown. The burden of proof was on the county, to prove its affirm
In the case before us, one witness testified that he viewed and laid out the road in 1885, and that since then there had been very little divergence from the road as laid out and that traveled by the public over Patrick’s land. He further testified that in the following summer, that is in 1886, he worked on that part of the road which was closed by the fence, and that he so worked under the direction of the road supervisors of Sheridan County. This court takes judicial notice of the fact, as the trial court undoubtedly did, that Sheridan County was unorganized untill 1888. The witness was undoubtedly mistaken, but his evidence stands in the record uncontradicted. We know judicially
Affirmed.
Rehearing
on petition eor rehearing.
This case was brought to enjoin the county from inter-, fering with a fence built by plaintiff across a traveled road claimed by. the county to be a public highway. For the reasons stated in the former opinion, the judgment in favor of the plaintiff was affirmed.' (104 Pac. 531.) A petition for rehearing has been filed on behalf of the plaintiff in error, the Board of County Commissioners. It seems to be supposed that the principle upon which the case was decided will tend'to confusion in the matter of public roads, and interfere with other roads in a similar situation, and it is stated in the brief in support of the petition for rehearing that this case is unimportant so far as it affects the particular road in controversy, but that it was brought or allowed to be brought as a test case to have settled the
We think it is a fact that in the earlier days of the settlement of this particular section of country it was not unusual for fences to be constructed without strict regard to boundary lines or corners, and that, in addition to public lands, it was not uncommon for land which had passed into private ownership to remain open and uninclosed. Public travel according to convenience across such uninclosed lands, was unobstructed. There has never existed in this State a statute to the effect that the mere use of a road by the public may ripen into a title or right thereto by prescription, but in some states there is such a statute, which is held to qualify the common law rule. (State v. Auchard (Mont.), 55 Pac. 361; Township of Madison v. Gallagher, 159 Ill. 105.) In the case last cited it was said: “Where the statute expressly says that use of the road as a highway by the public for a certain number of years makes it a public highway, we cannot see why such use is not evidence of as high a character as are acts of recognition by the town authorities.” And again: “Under such a statute the continued and uninterrupted use * * * for the statutory
In 1877 an act was passed providing: “That the Board of County Commissioners of the several counties of the Territory of Wyoming shall have power to adopt, and by resolution entered of record, appropriate to county and public uses any road or route publicly traveled, within their respective counties, whether originally opened and laid out by them or not, and any road so adopted and appropriated to public purposes shall be and is hereby declared a public or county road to all intents and purposes, the same as if originally opened or laid out by them and subject to the same laws and regulations in all respects.” Section 2 of that act required a record to be kept of all such proceedings, with a description of the road, for the information of the public, and to be open to public inspection. (Laws 1877, p. 135.) That act continued in force until repealed by an act approved March 12, 1886, whereby it was provided that all county roads shall be under the supervision of the Board of County Commissioners of the county wherein the road is located, and “no county road shall be hereafter established, nor any such road be altered or vacated in any county in this Territory except by authority of the County Commissioners of the proper county.” (Laws
“Section 1. All roads within this State shall be public highways which have been or may be declared by law to be national, state, territorial or county roads. All roads that have been designated or marked as highways on government maps or plats in the record of any land office of the United States within this State, and which have been publicly used as traveled highways, and which have not been closed or vacated by order of the Board of the County Commissioners of the county wherein the same are located, are declared to be public highways until the same are closed or vacated by order of the Board of County Commissioners of the county wherein the same are located, and the board or officer charged by law with such duty shall keep the same open and in repair the same as in the case of roads regularly laid out and opened by order of the Board of the County Commissioners.”
“Sec. 2. All county roads shall be under the supervision, management and control of the Board of County Commissioners of the county wherein such roads are located, and no county road shall hereafter be established, altered or vacated in any county in this State, except by the authority of the Board of the County Commissioners of the county wherein such road is located, except as in this act provided.”
Thus the only publicly traveled roads, not officially established, declared to be public highways, were those designated as highways on .government maps or plats in the record of a land office of the United States in this State. By the act of 1895 several former acts were repealed, including a chapter relating to roads passed in 1891, and one enacted in 1890. By the act of 1890 it had been provided in one section substantially as by the act of 1886, and, in another section, that public roads might be established without other proceedings than an order of the County
Upon a review of these statutes it cannot fail to be observed that there is a very significant omission of the provision found in some other States that a road shall be deemed a public highway from the fact alone that it has been publicly traveled as such for a certain number of years. With all the legislation on the subject, had such a purpose been intended, it would, we think, have been clearly expressed. We are left, therefore, to ascertain outside the statute the circumstances which can be held to show that the public travel of a road has been under a claim of right adverse to the owner of the land. Owing to the conditions that have existed in this State, and continue to exist, we are of the opinion that the only reasonable rule, in the absence of a statute to the contrary, is, as stated in the former opinion, that to establish a prescriptive right as against the mere silence of the owner of wild, uncultivated, unoccupied, open and uninclosed land, there should be shown, in addition to the use of a road by the public, the assumption of control and jurisdiction over it by the board of county commissioners for the statutory period of limitation. It is evident that where, as in this state, a large proportion of the lands remain open and uncultivated, the public will freely travel across the same merely as a matter of convenience and not necessarily with a purpose or thought of claiming a right adverse to the owner or owners, although a well defined road may in many instances result from such travel. We think the legislature must have had
It is contended, however, that the land in question did not come within the rule above stated for the reason that the land south of the traveled road was fenced. That fact, no doubt prevented the public from traveling over the inclosed land, but the land over which the public did travel, as well as the land north of it, was open and unin-closed, unoccupied and uncultivated, and the case therefore comes clearly within the rule:
It is argued that the court seems to have misapprehended the point in controversy, because it is stated in the former opinion that no question is raised as to the validity of the road as originally surveyed along the section line, and that the question presented is whether a road so located can be diverted from its original course to and over lands of another in the absence of dedication by the owner without official action or the assumption of control by the county board, and merely by long continued use by the public become a public or county road. The question to be decided may not have been accurately stated, but the point was not misapprehended. Whatever inaccuracy there may have been in the statement of the question did not change the situation, nor would a more accurate statement lead to a different result. It may be immaterial whether the road as surveyed along the section line was or was not legally located and established, except so far as it might tend to show the route over which .the county board claimed or exercised control and jurisdiction. The right, if any, acquired by the public to use the road in question is quite independent of the legality of the proceedings for locating a road along the section line, or of the question whether any such proceedings were had. But as will be explained later, the evidence relating to such a road becomes important in determining the effect of
By the statement that no question was here raised as to the validity of the road as surveyed on the section line, it was intended that the validity or legal existence of that road was not a question to be decided in this case, and we repeat that it is not. That road is being traveled without objection or obstruction, as the evidence shows, and had been for two years prior to the trial. The plaintiff below, defendant in error here, was not complaining of such travel. He had obstructed the road as previously traveled, and sued to restrain the county from interfering with such obstruction, and the county’s right in the case depended upon its showing that the road so obstructed was a public road. It is true that it appeared that a plat and field notes were on record showing a road along the section line, and plaintiff considered that to be the correct location of the road as originally located, and built his fence accordingly. The defendant county insisted that the road had never been located along the section line, and sought to prove that it had been located, traveled and controlled over the defendant’s land around a hill a short distance south of the section line; though it did not attempt to show the record proceedings, if any, so locating it. On the contrary, as stated in the former opinion, the county relied upon a right by prescription. There might have been two public roads, one legally established along the section line, and one through its use by the public and control by the county board for the period sufficient to give a right by prescription.
Although the question to be decided in this case is not the validity or invalidity of a road along the section line, the field notes and map introduced in evidence from the county records are important, and were properly admitted in evidence. Counsel for plaintiff in error states in his brief that such field notes and plat are unsigned and unauthenticated, that no one pretends to say where they came from, who made them, or how they came into the Clerk’s office. It is true that by what particular person they were
The Deputy County Clerk of Sheridan County, testifying as a witness upon the trial, produced from the Clerk’s office -a record book of the roads in Sheridan County, in which he testified he found at a certain page a road called “Soldier Creek Road”; that a part of it had been amended by the County Commissioners, but not that part here in controversy. He stated further that he had the transcript papers from Johnson County of which the record was a copy. He produced them, saying: “This is the plat as transcribed from the records of Johnson .County. These are the field notes of the same road transcribed from Johnson County. The field notes in starting commenced at Section 24, Township 56, Range 85, that is the beginning of the road.”
The plat so produced has endorsed upon it a certificate dated Feb. 4, 1886, purporting to be signed by the County Surveyor of Johnson County stating that it is a true copy of the map of the Soldier Creek road on file in his office, and also a slip attached containing a certificate signed by the County Clerk of Johnson County, dated June 14, 1889, that it is a true and correct copy as the same appears of record in his office. Upon such certificate and passing through the map is an impression of the county seal of Johnson County authenticating the same. The field notes are entitled: “Field notes of Soldier Creek Road.” Attached thereto is a certificate of the County Clerk of Johnson County similar to that on the map, and of the same date, with an impression of the county seal upon the slip upon
The map, evidently through a clerical mistake, gives the range at the point covered by the road in controversy ás 86, instead of 85, but in pencil above the figures 86 is written 85, but by whom so written is not disclosed. The true range in which the land and road involved are located is 85, and not 86, as inadvertently stated in the previous opinion. We say that the difference in the range number was evidently a mistake, for the reason that in the field notes the range is given as 85, and it is not claimed that they and the map disagree in any other respect. The road here in dispute was referred to upon the trial by counsel and witnesses as a part of the Soldier Creek road; and it appears that from the east and west ends of the strip in controversy running easterly and westerly, respectively, the line of the road as traveled is the same as shown on the map and by the field notes. The field' notes and map show a continuation of the road across or adjacent to ’the land of defendant in error along the north line of Sections 29 and 30. The divergence from that line of the road as traveled before it was obstructed by the defendant in error is not great. It appears to have run “around a hill,” as stated in the testimony. It leaves the section line in the northwest quarter of the northeast quarter of Section 29, and connects with it again in the northwest quarter of the northeast quarter of Section 30. The distance between the center of the road so traveled and -the section line varies from -a few feet at either end to about 400 feet at a point near the line dividing Sections 29 and 30. It appears that the traveled portion of the road was at least seventy or seventy-five feet wide, and some of the witnesses say that it was 100 to 150 feet wide in places, which would bring one side of it close to, if not touching, the section line, or the line shown on the map.' Referring to the rule applicable to a road across land situated as the Patrick land was, it was necessary for the county to show some Official control or recognition
It is unnecessary to here decide whether that record, without proof of any other proceedings, would be sufficient to establish the legal location and existence of the road so described. As the map and field notes had been on the records for more than 20 years, and the road described thereby, with the exception of the strip along the land of defendant in error, had been for the same period publicly traveled as one of the principal roads, in the county, there might perhaps be some ground for the presumption that it had been legally established. (See Town of Randall v. Rovelstad, 105 Wis. 410; Olwell v. Travis, (Wis.) 123 N. W. 111.) But the county was permitted by the trial court to show b}' the witness, Curtis, whose testimony is referred to in the former opinion, that he was one of the viewers and locators of the Soldier Creek road, and, notwithstanding that he testified that the viewers had made a written report, he was further permitted to state that where the road ran at the Patrick place, it was located and opened on the line subsequently traveled. He says
It appears that in October, 1907, the County Surveyor of Sheridan County made a written report to the county board, at the request of a member thereof, concerning the ques
In other respects than that mentioned in the former ■opinion, we regard the testimony of Mr. Curtis as insufficient to show any recognition or control by any Board of ■County Commissioners of the road as traveled through the Patrick ranch at the time he claims to have worked upon it, viz: in 1885 or 1886. In the first place his work at that time was confined to putting in a culvert at the north■east end and grading the road down on each side of the ■culvert. The northeast end was where this traveled road ■connected with the section line, or the road as surveyed according to the map and field notes, and it is not clear that any of the work referred to was south of the section line, or upon the road inclosed by the fence of defendant in error. Again it is left quite uncertain whether the Road Supervisor under whom he was working at the time gave any directions with special reference to that portion of the road running through the Patrick land. The witness was asked, when speaking of his work in 1885, if he was referring to the old Soldier Creek road running through the Patrick place, which he answered in the affirmative, and
In 1885, the. statute provided for the division of each county into road districts, and the appointment by the county board of a road overseer in each district, who was given charge of all roads in his district under the direction of the Board of County Commissioners. (Laws 1882, Ch_ 89.) The act of 1886 provided for a Road Supervisor, with authority to open, or cause to be opened, all roads, that may have been, or shall be, laid out and established according to law, in any part of his district, and to keep the same in good repair. (Laws 1886, Ch. 99.) If it may be assumed that the overseer or supervisor, in regard to the work performed by Mr. Curtis, was engaged in carrying out the directions of the county board, we fail to find anything in the evidence as to the work done in 1885 or 1886, showing official recognition or knowledge of any part of the Soldier Creek road that deviated from the line defined upon the map by the field notes of that road. It was the duty of the county to show by satisfactory evidence some recognition or control by the proper county authorities of the traveled road in controversy covering a period of at least ten years before the obstruction of the road, in order to establish a right in the public by prescription. This, in our opinion, it failed to do, even if the testimony of Mr. Curtis should be understood as stating that he was working at the time mentioned for the Road. Supervisor of Johnson instead of Sheridan County. We need not. therefore, reconsider whether it is proper to construe his testimony in that particular literally. The. application for rehearing will be denied.
