50 Neb. 358 | Neb. | 1897
The appellee filed a petition in the district court of Seward county, in which it was alleged that he was the owner of, and in possession, and had been since a day not definitely stated, of certain described portions of section 26, in township 10 north, of range 3 east of the 6-th P. M. in Seward county, and that said premises were, and had been during several years preceding the commencement of this suit, enclosed by a fence; that on or about the 3d day of April, 1893, and at other times subsequent thereto, the appellant wrongfully and unlawfully destroyed, broke, and removed the gates of appellee on said premises and used a portion of the land of appellee as a road or highway. A threatened continuation of the alleged trespasses was pleaded, and the petition concluded with a prayer that the appellant be enjoined from committing any and all of the threatened acts. To the petition the appellant filed an answer, in which it was admitted that he had done the things with the doing of which he stood charged in the petition, but pleaded that
Counsel for appellant contend that the findings and judgment of the trial court were not sustained by the evidence and were contrary to the weight thereof; and that under the rules of law applicable to the facts as they appeared in the evidence, the judgment was erroneous. It was xxxxdisputed that no plat of any road on the half-section line in question had ever been made or recorded; and further, that no work had ever been done by the public or at public expense, on the line as a i'oad. A number of persons who had known the section in the early days and years of the settlement of Seward county, and soxxxe of them during the years which had intervened to the time of the trial, and other’s of them only during portioxxs of such time, were sworn and testified in regard to the land of section 26 and the roads across it, and more particularly the parts of the section which, at the time of the trial, belonged to appellee. It appeared in evidence that
It is sustained by the evidence that after cultivation of the land commenced the travel over it was in such tracks and directions and under conditions dictated by the owner of the land, and not under a claim of right of a road, and adverse to the rights and control of the owner. Such user, if continued for ten years or more, would not establish a highway by prescription. (Elliott, Roads & Streets, 137; Shellhouse v. State, 110 Ind., 509; Alton v. Meeuwenberg, 66 N. W. Rep. [Mich.], 571; Gray v. Haas, 67 N. W. Rep. [Ia.], 394; Stewart v. Frink, 55 Am. Rep. [N. Car.], 618.) In regard to the appellant’s claim that he was entitled to a private road or way over appellee’s land and along the half-section line, the evidence supports the
Affirmed.