103 Neb. 663 | Neb. | 1919
This action in equity was commenced on the 16th day of December, 1914. Plaintiff filed his amended petition in the district court for Merrick county, in which he alleges that he was a citizen and resident of Merrick county, residing within five miles of the public road in
As the defendants admit that the statement of fact and issues in the appellant’s brief are correct and accurate, we copy therefrom, as summarized, sections 3, 4, 5, 6, and 7 of plaintiff’s petition:
“That the defendants, without legal right to do so, have closed the road to public travel, and have obstructed the same, and have and are threatening to prevent plaintiff, and the general public, from traveling over and upon said highway, and have plowed and planted it to crops and rendered it unfit for travel, and claim the right to so use the same, either as owners or lessees, and have denied and are denying the right of plaintiff and the public to the use of such highway.
“That on the 24th day of April, 1895, in an action then pending in the circuit court of the United States, in the district of Nebraska, to which the receivers of the Union Pacific Railway Company, the county of Merrick, the board of supervisors of said county, and the Union Pacific Railway Company wore parties, it was decreed that the highway in question should be located so that the north line of said highway is and shall be 63 feet south from and parallel to the center line of the main track of said railroad as then constructed through Merrick county, etc., that the railway company should have the right to put in culverts and ditches as needed, etc.
“That said decree was rendered on stipulated facts, to which stipulation the Union Pacific Railway Company, the receivers, Merrick county, and the board of supervisors of Merrick county were parties. That said decree was final, and permanently fixed the right of the public to maintain and use said highway.
“That said public road has never been vacated, and was used for many years until fenced and plowed and obstructed by defendants.
Plaintiff is a private citizen of Merrick county, and it is admitted that he resides within five miles of the road in issue, and that he has the right to maintain this action. The statute of limitations, which we are met with at the threshold of this inquiry, is found in section 7564, Rev. St. 1913, and provides: “An action for the recovery of the title or possession of lands, tenements or hereditaments, or for the foreclosure of mortgages thereon, can only be brought within ten years after the cause of action shall have accrued: Provided, no limitations shall apply to the time within which any county, city, town or village or other municipal corporation may begin an action for the recovery of the title or possession of any public road, street, alley or other public grounds or city or town lots. ’ ’
The issue here tendered by the pleadings would seem to be: Has this highway at any time since its organization been unused or abandoned, or has it been a regularly recognized and traveled highway1? The legal questions are fairly well settled in this issue. The question is largely one of fact and the section of the statute just quoted applies to the issues herein. It is in evidence that this highway was established west of the town of Chapman across Merrick county in the year 1874. While it is true that the statute was not in every detail complied with, and many things were left undone which the statute requires to have been done, nevertheless it was for years recognized as a regular and correct proceeding, and that the public had the right to travel over this highway attempted to be established at .this time: Thus did matters proceed until 1895, when proceedings were instituted in
From 1894 most of the country on the south side of the Union Pacific road track was open and unfenced, and there was some travel on a wandering and deviating line along the right of way of the Union Pacific west of Chapman. This trail was not a stright line and did not proceed as a road surveyed and marked out and worked, but was simply in the nature of a trail wandering and deviating in its character. There is no evidence that it was ever worked nor a dollar expended upon its improvement. It also is undisputed evidence that there were groves and trees and other incumbrances along this alleged highway, and that the travel did not interfere with groves and trees growing upon the alleged right of way surveyed and platted by the engineer of the county of Merrick. Thus there are evidences on every hand that this road as alleged to have been established in 1874 was simply a paper road and.had never proceeded beyond that stage. There is no evidence in the record that the officials, or any of them, whose duty it is to see to roads- and keep them in repair, ever did an hour’s work, or expended a dollar in money, in keeping up this road and causing it to have the appearance of a public highway. There is in the record no evidence whatever that the
The record discloses this was an official report made by a committee, which we will call viewers of the land, to the county board of supervisors. This was done sometime (if we quote the record correctly) in April, 1894. This condition such as we have described is a condition which could not have occured in a day or a night; there are groves and trees which could not have grown up over night, or have been in the condition that they were at the time proceedings were started in federal court in 1895. While we admit that it is true that this situation proves nonuser to a certainty, and for a period of more than 20 years, yet we do not claim, that nonuser is at all sufficient to maintain title. If there had been any actual occupancy, tangible and real, beyond paper, this nonuser would be of no force and effect only in so far as it expresses an intention on the part of the public as to what it was going to do with this road for travel purposes, and nonuser is met further in a question like this in so far as it indicates an intention of abandonment, and abandonment for a term of ten years or more in this state is sufficient to deprive the public of the road which has been so treated; but we. do not claim that nonuser may create abandonment, but it does clearly declare, and
It cannot be said that abandonment of this road gives any great inconvenience, or causes any great hardship, because, if it had, why would it have been abandoned? If it was so necessary to the welfare and prosperity and convenience of any given set of men, or community, why would they suffer all this inconvenience and annoyance when they could have prevented it by using it if it was so necessary? The record seems to disclose that the road laid out from Chapman south within a mile or two of the Oregon trail is the one used by the public generally, and has been for many years last past in traveling from Chapman to Grand Island; in other words, the record does not disclose that there is any necessity or convenience to be obtained in establishing this road. The report of the viewers appointed by the county com
The Union Pacific Railway Company acquired by act of congress in 1864 an easement for the operation of the railroad through and upon this strip of ground involved in the issues of this road case, and as a matter of law it is axiomatic that' whatever the public has done with reference to obtaining a road-way .over and upon the railroad land in question, and ’ having once obtained it, if it afterward abandoned this right or easement, then it must of necessity revert back to the defendant railway company, and it is a recognized doctrine that after acquiring land for a specific purpose, and afterward it is abandoned, then the easement is forfeited. Perry v. Staple, 77 Neb. 656; Baldwin v. Trimble, 85 Md. 396, 36 L. R. A. 489. This principle of abandonment as applied to the use of roads and the effect of it is recognized by the Ohio supreme court in Nail & Iron Co. v. Furnace Co., 46 Ohio St. 544, 5 L. R. A. 652. The only reason that the court did not hold that this road had been forfeited by reason of abandonment was that the abandonment did not continue over the statutory period of 21 years; but in Nebraska the.statutory period is only 10 years. It appears of record that by reason of the allowing of groves to grow up into large trees, and fences to be used to inclose the ground in issue, over the alleged road right of way, and from the farming business that went on, it was clearly the intention of the public, as well as that of the plaintiff, to pay no attention or to make no
The record discloses that the county board of Merrick county appointed a committee for the purpose of viewing and examining the public road in question. An examination of this report will show that the committee made a careful painstaking investigation, and nowhere in the record does it show that Merrick county ever expended any labor or funds in repairing or building this road, but it met no obligation and showed no interest whatever. The report also shows that on section 32, township 12, range 8, there is a grove of cottonwood trees 56 feet from the south rail, and 40 rods long, also a wire fence 40 rods long and 74 feet from the south rail at west end and 60 feet from rail at east end. On section 33, township 12, range 9, at Lockwood there is a wire fence 4 rods long, 66 feet from rail, and stockyards commencing 65 feet from rail- and extending back 12§ feet, On section 14, township 12, range 8, there is a fence 104 rods long 45 feet from rail, and a grove of box-elder and cottonwood trees 108 feet from rail on west end, and on section 18, township 12, range 8, there is a row of cottonwood trees 62 feet from rail. Also on section 7, township 12, range 7, Chapman town site, there is 40 rods of fence 97 feet from rail, and in section 8, township 12, range 7, there is 115 feet of grading 1 x 16, 55 feet from rail to north ditch, also 416 feet from grading 1 x 16, 60 feet from rail to ditch and 13 box-elder trees 69 feet from rail. In section 4, township 12, range 9, cottonwood trees 60 feet from rail, and on the northeast quarter of this section there is a grove running-parallel to road 116 feet from rail. So this report continues detailing the groves, the fences, and the occupation and use of this alleged road by farmers, running all
Neither the public, nor a private individual, has any right to sleep upon his rights so long that witnesses are dead or have departed from the territory in question. It is the law of Michigan that a highway can be partially discontinued by nonuser. Gregory v. Knight, 50 Mich. 61. It is the recognized law of this country that ‘ ‘ every right or interest in, title to, or ownership of property may be lost by abandonment.” 1 C. J. 9, sec. 12. In this case there is evidence of nonuser, which being applied to the question of abandonment of the easement that the plaintiff asserts in the roadway in controversy is evidence of intention. Whether or not he has abandoned his easement depends upon circumstances, and is a question of intention always. Then again in the decree or stipulation entered into when this action was before the federal court in 1895, it is noticeable that neither the county of Merrick nor any one acting for it has ever performed a single agreement entered into at that time or place. The fact is that neither the Merrick county officials nor this plaintiff, nor any one similarly situated as they, have ever exercised any dominion over or performed a single act in recognition of this road,, and the record discloses that possibly whatever travel there may have been from Chapman to Grand Island goes a mile or two south of Chapman, and this was on the Oregon trail to Grand Island, and all the travel upon this road has been fitful
In Railroad v. French, 100 Tenn. 209, 66 Am. St. Rep. 752, is was held by the Tennessee supreme court that a user by an adjacent landowner of the right of way up to ihe line of road for an indefinite time is not adverse to the road easement. To the same effect is Southern P. R. Co. v. Hyatt, 132 Cal. 240.
In concluding this discussion, permit us to say that this court has held: “Proceedings had under a statute to create a highway should be so definite and certain that a competent surveyor could, with the record before him, point out this location.” Warren v. Brown, 31 Neb. 8. Applying this holding to the question at issue, the appellant’s contention wholly fails, because it is a matter of record that there are no landmarks, no corners and none of the usual methods of recognition have ever been established or pointed out. The record does not disclose any evidence of a road there, or any travel, only a wandering and deviating path along the railway right of way.
So, from every standpoint, we must conclude that the judgment and finding of the trial court should be, and it is
Affirmed.