40 Iowa 634 | Iowa | 1875
The petition claims that the road in question has become a highway bjr long continued and uninterrupted public use. It is impracticable to review all the evidence, which is voluminous, and it would be impossible to present it so that it would be clearly understood without setting forth maps, with which we have been furnished, and which we have used in applying the evidence to the case. The road in controversy extends along Four Mile creek, in Polk county, is situated in Sec. 8, Tp. 78, E. 23, and is a little over one mile in length. A county road, known as the Eising' Sun road, extends along the northern line of this section, and a county road called the Adelphi road extends along the southern line of the same. Both these roads lead to Des Moines, which is about four miles west and a little north of the place which is the subject of this controversy. The road in dispute connects these two roads. The plaintiff resides on the west side of Four Mile creek, between the roads above mentioned, and he appears to be the only person who now resides upon the creek, between said roads. Polk county was settled about the' year 1845. Before any highways were located, the travel went up and down Four Mile creek, and wherever else necessity or convenience
Now, whilst the evidence clearly shows that a road leading up Four Mile creek has been traveled by all having occasion to do so, for about twenty-five years, yet the use is not of such character as to justify the conclusion that it was adverse to the owner of the soil, and under a claim of right by the public.
Defendant fenced up the road in question in the spring of 1869, and erected gates for the use of himself, intending to let his neighbors pass through them as long as they kept the gates closed. In the fall of 1870 these gates were locked. Eor a period of more than a year that this way was obstructed by gates, no complaint was made. When defendant built his levee, in 1860, he ploughed and scraped out the track of the road to the depth of a foot and a-half or two feet, and to this no objection was made. Subsequent to 1864, defendant cut brush and threw it into the road, where it remained for several years, without conrplaint. In view of the character of the highway, the fact that it is over unimproved and vacant land, the roving nature of the possession, and the extent to which it was suffered to be interfered with without complaint or protest, we do not feel warranted in holding that there has been such continued, uninterrupted, adverse use under claim of right, as amounts to the establishment of a highway by prescription. See Gentleman v. Soule, 32 Ill., 271 (278); Lawton v. Rivers, 2 McCoid, 445; Bowman v. Wickliffe, 15 B. Monroe, 84; Angell on Highways, § 151, and eases cited; Warren v. Trustees of Jacksonville, 15 Ill., 236 (241).
In our opinion the judgment should be
AjmBMED.