75 Neb. 847 | Neb. | 1906
This is an appeal from a decree enjoining the defendants from maintaining a fence on an alleged public road. The defendant Babcock owns the southwest quarter of the northwest quarter of a certain section of land, and his codefendant owns the southeast quarter of the northeast quarter of the section adjoining on the west. The road extends north and south on the section line between the two forty-acre tracts. That the defendants, a short time before the suit was commenced, erected a fence on the road is not disputed; the only controversy being the sufficiency of the evidence to show the existence of a public road. That the county board never made any order for the opening of the road is conceded. It does appear, however, that many years ago the county board entered an order declaring all section lines within the county public roads. But as this amounted to a reiteration of section 46, chapter 78, Compiled Statutes 1905 (Ann. St. 6049), it was mere brutum, fulmen, and, of itself, has no bearing on the question at issue.
One contention of the plaintiff is that the alleged road is a highway by dedication. The evidence seems to bear out this contention. It appears that for many years the travel to and from the Black Hills country was along trails in the vicinity of this road. It does not appear to have been confined to any particular track, and as the county was largely unsettled section lines were disre-' garded.' Although it was denied by the defendants, it sufficiently appears that almost 20 years ago the defendant Babcock and one through whom the other defendant traces his title, and who then owned the Sullivan forty, for the purpose of inducing the public travel to follow the section line between their respective tracts, built fences and planted trees on their respective sides of the section line, leaving a space about 66 feet wide for public travel, and that thereafter, until about the time of the commencement of this suit, the travel was confined to that space, which has
Considerable stress is laid on the fact that the road in question is connected Avith no public road at the south, and that it is some 80 rods from the north line of the defendants’ lands to a public road with which this road Avould connect at the north; in other words, that this road is disconnected from all other public roads. In view of the entire evidence, that fact has no special significance. The travel from other public roads to this road is over private property and Avith the permission of the OAvners, who, unlike the defendants, are not sIioavu to have dedicated a riaht of Avay for the use of the public. When
It is recommended that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.