85 Neb. 781 | Neb. | 1910
This is an action against the city of Lincoln and its officers, the street commissioner and his assistant, to enjoin them from removing certain fences claimed by the city to be in the street, and to quiet the title of plaintiffs in the property inclosed. The petition alleges title by adverse possession, and it is not claimed that plaintiffs hold the land by any grant or paper title. It is unquestionably true that the strip or portion of land lies in front of plaintiffs’ lots outside the lot line and is a part of the street, unless the right of the city to cause the street to be opened its full width has been lost by the inclosure of plaintiffs and adverse holding by them for the statutory period. It is alleged that’plaintiffs, Fields, became the owner of the lots abutting on the street in the year 1880, and Avhich. Avere lots 9, 10, 11 and 12, in block 3, of Kinney’s O street addition to the city, and that they sold lots 11 and 12 to plaintiff Fossler in the year 1903. It is also alleged that the Fields became the owners of lots 7 and 8, in the same block, in 1879; that prior to the purchase by the Fields the then owners Avere, and for some time prior thereto had been, in adverse possession of the property in dispute; that such possession had been maintained from the date of purchase to the time of the commencement of the suit; that defendants were threatening to remove the said fences and open the street to the full width, and thereby interfere with and interrupt plaintiffs’ possession. The defendants ansAvered, denying the averments of the petition as to the adverse possession, and set up the passage of an ordinance of the city passed and ap
During .the trial the existence of the ordinances was admitted, and they were introduced in evidence. They are preserved in the bill of exceptions and are of the tenor and effect as above stated, and therefore need not be copied here. From a perusal of the bill of exceptions, it appears that the strip or portion of the street involved in this suit was not fenced until after the passage of the ordinance, and, if s.ucli adverse possession as would ripen into a title had not been exercised prior to the passage of such ordinance and construction of the fence, the possession will have to be held as permissive only, and not adverse. The evidence is clear, both from the testimony of plaintiffs and other witnesses, that prior to the year 1880 the strip had not been inclosed, and that when the fence was built it was for the protection of the trees, which was permitted by the ordinance of 1878. It is very doubtful if the mere cultivation of such a portion of the street without inclosing it, or in some way excluding the public, could ripen into a title. In Elliott, Roads and Streets (2d ed.) sec. 883, after a somewhat lengthy discussion of the question of the barring of rights of the public by statute of limitations or adverse possession, the author, at the close of the section, says: “Even if title to a highway may be acquired by adverse possession, it is not every encroachment thereon that constitutes such possession. Setting out shade trees, making a sidewalk, fencing in a portion of the way, and the like, have been held insufficient to establish a claim by adverse possession”- — citing cases from New York, California,' Indiana, Michigan, Texas, Massachusetts, Wisconsin, Missouri, loiva, Illinois and Minnesota. While this is not adopted in this state in all its parts, yet we think it is clear that to divest the public of its highways the rules governing adverse possession should be held strictly against the disseizor, and his right, if established at all, should be based upon clear proof of adverse holding for the full statutory period, and the
The judgment of the district court is
Affirmed.