28 Neb. 263 | Neb. | 1889
This is an action to enjoin the defendants from obstructing an alleged public road in the city of Beatrice.
It is averred in the petition that “the defendants, ¥m, Black and Cochran S. Black, as partners under the name and style of Black Brothers, own lot 32 in Green’s subdivision, being a part of the city of Beatrice, Nebraska, and the defendants, ¥m. W. Buchanan and Charles E. Buchanan, own lot 1 in block No. 35 of Smith Bros.’ addition .to said city of Beatrice; that there is a legally established highway running north and south between said two lots, thirty-three feet of which highway is on the west side of said lot 32 in Green’s subdivision and thirty-three feet is on the east side of said lot 1 of block 35 in Smith Bros.’ addition to the city of Beatrice, Nebraska; that said highway was established long before said Green’s subdivision and said Smith’s addition were platted and recorded, and have been traveled and used as a public highway for more than ten years last past; that the defendants, ¥m. Black and Cochran S. Black, placed a fence across the east half of said highway where it crossed said lot 32 of Green’s subdivision and thereby obstructed said highway,
To this petition William and Cochran Black filed an answer, in which they admit the incorporation of the city; that they are the owners of the real estate described in the petition, and allege that the public road in question has not been used for five years next before the commencement of
On the trial of the cause the court rendered a decree as follows:
“This cause came on for hearing upon the petition, the answer of defendants Chas. E. Buchanan and Wm. W. Buchanan, and the evidence, and was submitted to the court, on consideration whereof the court finds that there was no notice given as provided by law, and, therefore, there is no legally laid out road.
“The court finds that that portion of said road lying east of quarter section line has not been used as a public highway for ten years. The court further finds that that portion of said road lying -west of quarter section line has been used as a public highway for more than ten years last past. It is therefore ordered, adjudged, and decreed by the court that the injunction be dissolved as to that part of said road lying east of quarter section line, and that injunction be made perpetual as to that part of said road lyipg’ west of said quarter section line — a strip two.rods wide — and that a peremptory order issue to open said road.”
“In 1867 a petition was presented to the county commissioners of Gage county for the location or change of a public road as follows :
“ To the Board of County Commissioners, of Gage County, Nebraska, April Session, 1867: Your petitioners, landholders and residents in the said county of Gage, would respectfully represent to your honorable body : That the public interests of the county require that the following changes be made in the territorial road from Nebraska City, Otoe county, via Helena and Yesta, Johnson county,
In accordance with the prayer of the petition the road as prayed for was duly located and recorded, and has been traveled by the public ever since.
The original town of Beatrice was located on the southeast quarter of section 33, and southwest quarter of section 34, town 4, range 6, the northeast corner of the town plat being at the center of said section 34.
The road so changed and located commenced at the center of said section 34 and ran directly north to the north line of the section, thence east, etc., as shown by the plat. The part of this road in controversy is that which lies immediately north of the center of said section 34.
In 1880, A. L. Green, being the then owner of the west half of the northeast quarter of said section 34, laid it out into an addition to Beatrice and platted it as Green’s subdivision. Lot 32 of this subdivision is owned by the defendants,. the Blacks. The southwest corner of said lot 32 is located in the center of said section 34, and the road, established as above shown, ran across the west side of said lot 32. Just west of Green’s subdivision is Smith Brothers’ addition to Beatrice, which was laid out and platted in August, 1883, of which the defendants, Buchanans, own lot 1, in block 35, which lot adjoins said lot 32, owned by the Blacks on the west, and has its southeast coimer at the cen
The court below seems to have found that no notice of the .petition for a road had been given and that therefore the proceedings were void. The road in question was located more than twenty-two years ago and was immediately thereafter opened for travel and has been traveled by the public ever since. In such case the presumption is that notice was duly given. The acquiescence on the part of the owners of the land over which the road was located for so long a period bars them and their grantees from questioning the proceedings by which the road was located. The case resembles that of a party who claims title to real estate by adverse possession where the original title under which he claimed the premises and occupied the property was invalid and would have been set aside in a proper proceeding. After the lapse of ten years, however, objections to such deed cannot be raised because by the acquiescence of the parties claiming an interest in the land the adverse occupant has obtained by lapse of time an estate in fee in the land and the court will not look at the original title except for the purpose of determining the boundaries of the tract. So in the location of a public road. If a petition is duly presented to the proper tribunal praying for a public road from one point to another in the county and such petition is granted and the road located and opened for travel and is used by the public generally, the right in the public will
It is the policy of the law to quiet the right of the public in the use of public roads in the same time that an adverse occupant will acquire title to real estate. This tends to produce peace and harmony among neighbors and encourages the construction of good roads and bridges and promotes friendship and good-will in every community. The rule would be different if the action was brought before the bar of the statute was complete. It is said, however, that the travel did not pass over that portion of the road between the lots in dispute. On that point the testimony shows that while a larger portion of the travel turned off near one corner of the lots in question and passed diagonally across other real estate to Beatrice, yet the testimony also shows that there was considerable travel over the road in question between said lots. This being the state of the proof it is clear that there is a valid public road of the statutory width between the lots in question and that the city is entitled to have the same opened for travel.
The decree of the district court, therefore, will be modified to conform to this opinion.
Judgment accordingly.