168 P.2d 864 | N.M. | 1946
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *52 Plaintiff-appellant (hereinafter referred to as plaintiff) sought to enjoin defendant-appellee (hereinafter referred to as defendant) from interfering with plaintiff's use of an alleged public road or highway across the lands of the latter. Judgment was for defendant, and this appeal followed.
Plaintiff plead, and relied upon, two causes of action. In the first he alleged the establishment of the road or highway in question by the acceptance of a federal grant by means of use by the public while the land was unappropriated public domain, by authority of
For his second cause of action plaintiff alleged that the road was established by prescription after the land in question was filed upon and patented by defendant's predecessor in title, through use by the public for a period of time sufficient to give a prescriptive right in the public as against the private owner. All material issues were controverted by the answer and in addition it is alleged that if a public road had in fact been established, it had since been abandoned by non-user. The passage, or line of travel, contended for by plaintiff, will be referred to as the "passage," "highway," or "road," without implying that it was in fact a prescriptive road, public or private.
The road, it is alleged, traverses the ranch and lands of defendant, which comprises some 17 or 18 sections of land *53 in Lincoln County. It enters near the northeast portion, crossing it in a southwesterly direction, following generally along a shallow and non-precipitous depression, or drainage area, sometimes known as Largo Canyon.
The court's findings are as follows:
(1) There has not been continuous use by the public of the road in question in its entirety, nor as to any or all parts thereof as it crosses lands of defendant, for a period of ten years prior to all of the times that Homestead Entries were made as to said lands; and this applies whether homestead entries as to the lands patented in 1923, above described, were made three or five years prior to the issuance of patents thereto.
(2) For the period of ten years subsequent to the time when all of defendant's lands came into private ownership under patents there has not been, by the public, continuous, open, uninterrupted, peaceable, notorious nor adverse, use of the road in question in its entirety, nor as to any or all parts thereof as it crosses the lands of the defendant, nor with the knowledge of defendant or of former owners; and this applies if it can be said that the period of prescription as to patented lands starts as of the time of homestead entries (though the court does not so hold in law).
Then follow the court's conclusions of law, to-wit:
(1) One method of accepting a grant for a public road on the public domain under Section 2477, Rev.St. of U.S.,
(2) When homesteads are made on lands of the public domain the lands covered by such homesteads cease to be public domain, such that after the time that a homestead entry has been duly made any use of the road by the public over lands included in such entry is ineffectual to constitute a grant under said United States Statute.
(3) What is necessary and essential to establish a public road by prescription is such as is set out under Finding of Fact No. 2 above.
(4) As to other matters heretofore set out as matters of law, the court makes them as its conclusions of law.
(5) The court concludes that plaintiff's relief prayed for should be denied and that his action herein should be dismissed.
The word "highway" as ordinarily used means a way over land open to the use of the general public without unreasonable distinction or discrimination, established in a mode provided by the laws of the state where located. Ball v. Stephens, *54
Highways can be established only as provided by the statute quoted (Board of County Com'rs v. Friendly Haven Ranch Co.,
The Federal statute involved is as follows: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."
This is an offer to dedicate any unreserved public lands for the construction of highways, to become effective when accepted; Atchison, T. S.F.R. Co. v. Richter,
The only question we need consider is whether a highway can be established by dedication under the federal statute and state laws by public user for a period of time less than ten years, if at all. It is asserted that it can be established only by a user of ten years. But we are of the opinion that if in this state a highway can be established over public land by public user alone (that is, if the offer to dedicate can be accepted by the public without some action by the public authorities), the continued use of the road by the general public for such time and under such circumstances as to clearly prove an acceptance of the offer by it, the highway is established, whether the time of user is six months or fifty years. The time of user is competent evidence on the question of acceptance or non-acceptance by the public, but so is the amount and character of user, or any other evidence tending to prove or disprove acceptance.
It is a general rule that acceptance of an offered dedication of land for a highway may be established by proof of *55
affirmative acts of taking possession by public authorities or by general use by the public, provided the use is sufficient to constitute acceptance. Wilson v. Williams,
The Supreme Court of the United States has said that such user "ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment." City of Cincinnati v. White's Lessee, supra [6 Pet. 439].
A highway may be established in New Mexico by dedication, Sec. 58-101, N.M.Sts. 1941, supra, and acceptance, State ex rel. Shelton v. Board of Com'rs of Bernalillo County, supra.
No question of implied dedication is involved. The United States as a landowner has made an offer to dedicate unappropriated land for highways, if accepted as authorized by this state's law, the easement for its use as a public highway was created exactly as though the dedicator was an individual landowner. If mere public user is a sufficient acceptance of an offered dedication, the ten year statute of limitation is not remotely applicable. Hester v. Sawyers,
The courts of a majority of the states which have had the question for consideration have held that the general rule applies to the offered dedications of highways under the federal statute involved here. Schwerdtle v. Placer County,
We adopted the general rule in Wilson v. Williams, supra; but the trial court appraised that case as having adopted an exception originating as dictum in opinions of the Washington Supreme Court, in which it was held that the offered dedications over public lands required user for the prescriptive term of ten years to constitute acceptance. A history of this departure from the general rule of accepting a dedication by public user will be helpful.
In Smith v. Mitchell,
There was a 10 year user subsequent to the pre-emptor's settlement on the land. The holding seems to be that the use from 1872 to 1897 created a prescriptive right in the public.
In City of Seattle v. Smithers,
It will be noted that Washington's seven year limitation statute applies to roads adversely used for that period of time, provided public work is done and public money is spent thereon.
In Okanogan County v. Cheetham, supra, the Washington court, after holding that the grant was one in praesenti (afterwards overruled by the same court), stated: "* * * Respondent contends that, as her homestead entry was made before this strip had been used as a highway for the period of 10 years, and before the county commissioners had adopted the resolution referred to, she had rights paramount to those seeking to use said strip as a highway, and that the action of the public in using said roadway and the action of the county commissioners in adopting said resolution were insufficient to deprive her of the right of control over said strip of land. * * * But questions quite similar claimed the court's attention in the case of Smith v. Mitchell,
The court again held that the congressional act provided for a grant in praesenti and quoted with approval from Wells v. Pennington County,
The Washington court continued: "As to user by the public constituting an acceptance of a dedication for highway purposes, the Cyc. vol. 13, at page 465, says: `An offer of dedication, to bind the dedicator, need not be accepted by the city or county, or other public authorities, but may be accepted by the general public. To deny this would be to deny the whole doctrine of dedication. The general public accepts by entering upon the land and enjoying the privileges offered; or, briefly, by user. Except when user is relied on to raise a presumption of dedication, theduration of the user is wholly immaterial." (Our emphasis.)
Washington's seven year statute is as follows: "All public roads and highways in this state that have been used as such for a period of not less than seven years, and are now so used, where the same have been worked and kept up at the expense of the public, are hereby declared to be lawful roads and highways within the meaning and intent of the laws now existing governing public roads and highways in this state." Rem.Rev.Stat.Wash. § 6494.
This statute was in force at the date the Cheetham case was decided. On that date a highway could "be established by prescription, dedication, user, or proceedings under the statute." Smith v. Mitchell, supra.
We conclude from the Washington decisions up to that time, that because of the seven year limitation statute no highway could be established by public user alone except in cases of dedication, or by adverse user for a period of ten years over private land, thus creating a prescriptive right. But as held in the Cheetham case, the general rule regarding the acceptance of a dedication by public user was not affected by this statute.
In Vogler v. Anderson,
The statement "but, if the road is established by adverse user, it takes effect when the adverse user ripens into a right by prescription" could not properly apply to highways established under the federal statute. The user is not adverse, nor is the right a prescriptive one.
As the land involved in the Vogler case was subject to the federal statutory dedication, and mere acceptance by the public, according to prior decisions, was sufficient to make the grant effective, the cases of Smith v. Mitchell, supra, and Okanogan County v. Cheetham, supra, were in effect overruled by limiting the establishment of highways to "some of the ways provided bystatute before the grant takes effect." There was no statute providing for such establishment by public user alone; but strange to say it was inferentially held that a prescriptiveright could be acquired by a public adverse user for ten years, though no statute so provided.
In Stofferan v. Okanogan County,
It thus appears that the Washington court, without citing authority or in fact giving any reason for its holding, concluded that if a highway was not established over public land under a statute it could only be established by continuous use by the public for a period of 10 years "coextensive with the period of limitation for quieting title to land." No reason is given for this holding, nor is it claimed that the tendered dedication by the United States government placed the public in any different position than if the dedication of private lands had been tendered by an individual landowner.
This continued to be the rule until the recent decision in Corning v. Aldo,
The controversy in the Corning case was over a 20 foot strip of land used as a roadway. The court stated:
"We rest our decision herein upon two grounds: (1) That, under the evidence disclosed by the record, a public roadway was created by dedication and acceptance, and (2) that the title to the 20-foot strip *61 in the gully never vested in the appellants at all.
"Prior to the time that appellants contracted to purchase the land, their grantors had, by a written instrument, dedicated the 20-foot strip here in question to public use by granting to the general public the right and privilege to use the same forever for public roadway purposes. * * * Pursuant to the dedication of the 20-foot strip by its owners, the public continued to use the same, as it had previously done, for the purposes indicated. That use has continued to the present time.
"Dedication originates in the voluntary donation of the owner or seller, and, when the intention of the owner to dedicate is clear, manifest, and unequivocal, whether by a written instrument or by some act or declaration of the owner manifesting his clear intent to devote the property to public use, it becomes effective for that purpose. Shell v. Poulson,
"User by the public following dedication constitutes an acceptance of the dedication. User, if actual and continuous,need not be for any fixed time, because it is not a matter of prescription merely, but one of acceptance of the grant.
Okanogan County v. Cheetham,
While the Corning case did not involve public land, the Cheetham case (the only supporting authority cited) was such a case. In principle, the status of the landowner who makes a dedication is immaterial. The same rule that permits an acceptance by public user of a dedication made by an individual should apply to the United States as a landowner. Only acceptance by the public authorities or by user is necessary to establish a highway. The 10 year statute of limitation as applied to ways established by prescription is not a factor in establishing highways by dedication.
The following decisions of the Montana Supreme Court have been cited in support of the trial court's conclusions: Butte v. Mikosowitz, supra; Montana Ore Purchasing Co. v. Butte B. Consol. Min. Co.,
The question here presented was first raised in Murray v. City of Butte, supra. In that case the Montana court stated: "Section 2477, Rev.St.U.S. [
"The law, then, was a grant of an easement for a public use.
"In the case of City of Cincinnati v. White's Lessee, 6 Pet. 431 [
"* * * Sec. 2477 was a grant by the government of an easement, and defendant sought to prove an acceptance prior to the location upon which the patent was based. If such an acceptance of the grant of the easement could have been established, it would have been valid against the government, and therefore valid against the subsequent grantees of the government, who must take the land in question, subject to any easement which was valid against the government at the time of the location." (Emphasis ours.)
The rule laid down by the Montana cases is well stated in City of Butte v. Mikosowitz, supra [
From 1895 to 1913 a Montana statute provided in substance that a highway could not be established by user alone. Warren v. Chouteau County,
There are statements in some of the cases herein mentioned, and particularly State ex rel. Darsie v. Nolan, supra, to the effect that the federal dedication could not be accepted by a public user for a term less than that required to obtain title to private real estate by prescription; and the appellee cites them in support of this theory. But the Montana court in a recent case stated that such was not its intent. In Moulton v. Irish, supra [
It is stated in Hughes v. Veal, cited by the Montana court [
And that seems to be the present holding of the Montana court.
In Maynard v. Bara,
The appellee cites a number of cases having reference to prescriptive rights of individuals over private lands, such as Hester v. Sawyers, supra; Pope v. Alexander,
Tucson Consol. Copper Co. v. Reese, supra, is cited by the appellee. It holds that a statute of Arizona prohibits the establishment of a highway by use alone. We have no such statute, and hold that a public highway can be established in New Mexico by use alone. The case is not applicable.
The North Dakota cases cited are controlled by a statute which provides that 20 years public user is required in that state to establish a highway by use alone. Obviously these cases are not authority here.
The trial court erred in its conclusion that it required a public use for ten years to effect an acceptance of the offered dedication of a highway over unreserved lands of the United States, under
The appellant asserts by his second cause of action that he and the general public had used and traveled the road in question for more than twenty years prior to the bringing of this suit; that said use for all this time had been continuous, uninterrupted, adverse to all others and under a claim of right.
The trial court found as follows: "For the period of ten years subsequent to the time when all of defendant's lands came into private ownership under patents there has not been, by the public, continuous, open, uninterrupted, peaceable, notorious nor adverse, use of the road in question in its entirety, nor as to any or all parts thereof as it crosses the lands of the defendant, nor with the knowledge of defendant or of former owners; and this applies if it can be said that the period of prescription as to patented lands starts as of the time of homestead entries (though the court does not so hold in law)."
We stated in Board of County Com'rs v. Friendly Haven Ranch Co., supra, regarding a road that had been used by the public generally for forty years: "* * * The court found that there is a road at *65 the place in controversy, which has been traveled by the public generally for a period of more than 40 years. There is no finding as to the character of the use made of the road by the public, whether it was adverse under claim of right, or whether it was merely permissive. The proof shows that the road was privately constructed and maintained, and tends to show that the use made of the road by the neighbors and the public was permissive at all times. No dedication of the road to public use is shown. Under such circumstances, it would seem clear that no public road exists at the place involved. * * * The proposition is not open to debate, and all the courts agree that in order to establish a highway by prescription the public use must be adverse, uninterrupted, continouus, and under claim of right."
We need not go into the question of whether a highway may be established by prescription. Meek v. Love,
We have read the voluminous testimony, and find in it substantial evidence to support the court's second finding. It would serve no useful purpose to review it here. It is conflicting to a high degree, but it was the function of the trial court to determine the facts.
The trial court did not err in holding that a highway had not been established over appellee's land, as claimed by appellant, after title, or inchoate title, had passed from the United States.
It should be stated that if a highway as claimed by appellant was established while the land was the unreserved property of the United States, the fact it thereafter passed into private ownership did not affect the rights acquired by the public by its acceptance of the offered dedication. Korf v. Itten,
It is to be regretted that the cause cannot be remanded for new findings, but inasmuch as the judge who tried the case below died soon thereafter, we can only remand it for a new trial of the first cause of action, and defenses as pleaded.
The decree is affirmed as it affects the second cause of action, and reversed and *66 remanded to the district court with instructions to set aside its decree and grant a new trial of the issues in the first cause of action, and thereafter enter a decree not inconsistent herewith.
It is so ordered.
SADLER, C.J., and BICKLEY and LUJAN, JJ., concur.
HUDSPETH, J., did not participate.