84 Neb. 654 | Neb. | 1909
This is a suit for an injunction to prevent county officers from grading a highway on plr.'ntiff’s land. On the section line running north and south between the northeast quarter of section 81 and the northwest quarter of section 32, town 11, range 6, Lancaster county, there is a hedge of osage orange half a mile long. Four rods west of this hedge there is a parallel wire fence of the same length. In the intervening space four rods wide and half a mile long there is a public road. The hedge has been growing on the section line for more than 30 years. The wire fence was built as early as 1881, and has been maintained ever since. The road has been continuously used by the public as a highway for more than a quarter of a century. Kendall-Smith Company, plaintiff, is a corporation, and was organized three or four years before the trial of this case. It owns the northeast quarter of section 31 west of the highway, having acquired title from Kendall & Smith, a partnership, and claims the right to control the west half of the four-rod strip of land between
Defendant, however, does not rely alone on user with the knowledge and acquiescence of the owners to prove a dedication, but urges specific acts on their part to establish a grant to the public. It is argued on behalf of defendant that the construction of the wire fence is evidence of an intention to dedicate to the public the land left open. On this subject the supreme court of Illinois said: “We are of the opinion that it has been established in this case that the fence built in the year 1855 was not only apparently on a line thirty-three feet north of the south line of section 10, but was so in fact. And, that fact being established, no stronger proof of an intention to give the strip of land thus thrown out to the public for a street or road could be furnished, unless it were shown that a written dedication or an actual platting had been made.” Moffett v. South Park Commissioners, 138 Ill. 620.
The proof of the intention to dedicate has support in other facts. One witness testified that, under direction of a member of the partnership owning the land, seeds of trees were sown along the fence, and another witness had assisted in setting out a tree at each fence post. In discussing acts like those described, the supreme court of Iowa said: “But we are of the opinion that the facts of the case show a dedication of the land outside of the hedge to the public use. When the hedge was planted, the highway was in use. It was planted for the purpose of a fence between the field and the highway. No man in his senses would have planted and maintained it at an average distance of three feet from the highway, and at the same time kept a fence on the line of the road. The legal presumption is that the person planting it intended the hedge to be on the line dividing the highway from his
The defense of dedication is strengthened by circumstances in addition to those already mentioned. There is testimony to the effect that Kendall & Smith ovraed or controlled the land on both sides of the hedge for a period of more than ten years after the Avire fence had been com structed, and during that time kept the four-rod strip Avest of the hedge open and the land east of it closed and that Kendall had knoAvledge of the use the public Avas making of the land in controversy and at different times sent employees to Avork on the road under the direction of a public overseer Avho gave them receipts shoAving the services rendered.
In support of the petition for injunction, Kendall testified, in substance* that the OAvners of the land opened the road for their OAvn benefit; that the Avire fence Avas not erected four rods Avest of the hedge for the purpose of dedicating more land to the public for highAvay purposes; and that the additional strip Avas intended for the private convenience of the OAvners, affording a passage from farm buildings to other lands and a place for farm drainage; but the presumption arising from user and the unequivocal acts of the OAvners in constructing the Avire fence, in thus opening to the public a strip of land four rods Avide, in keeping the land east of the hedge closed, in soAving seeds of trees along the fence, in planting trees beside
Plaintiff’s argument to the effect that defendant did not occupy the land west of the beaten track, where the line of travel was wholly on land within two rods of the hedge near the north end, and that therefore the public did not use the entire four-rod strip continuously for the full statutory period, is clearly untenable. The land used for a county highway is not confined to the wagon track. Teams usually pass wherever they meet, and necessarily depart from the beaten path. When they leave the roadway to pass each other, the public asserts dominion over and uses land outside of the line of travel, and prescriptive rights are not confined to the graded roadway. In Bartlett v. Beardmore, 77 Wis. 356, the court said: “Most country roads have a narrow beaten track, but it does not follow that the use is confined to such path. Teams must pass each other, and for that purpose must necessarily depart from the main traveled track. So when such track is muddy, public convenience requires departures from such track. We cannot hold that the public can acquire no legal right to such sides of the main traveled track by such ordinary user. On the contrary, it is held by courts of high authority that, ‘where a highway is established by user merely over a tract of land of the usual width of a highway, the right of the public is not limited to the traveled path, but such user is evidence of a right in the public to use the whole tract as a highway by widening the traveled path, or otherwise, as the increased travel and the exigencies of the public may require.’ Sprague v. Waite, 17 Pick. (Mass.) 309; Hannum v. Inhabitants of Belchertown, 19 Pick. (Mass.) 311; Simmons v. Cornell, 1 R. I. 519; Cleveland v. Cleveland, 12 Wend. (N. Y.) 172.” One of the county commissioners testified that the grade was midway between the hedge and the wire fence;
A highway the full width of the land between the hedge and the wire fence was clearly established by user. The prescriptive rights of defendant were complete before plaintiff acquired title to the quarter section of land west of the hedge. On the testimony in the record the findings should have been in favor of defendant. The decree below is therefore reversed, with directions to the district court to dismiss the action.
Reversed.