88 P. 574 | Kan. | 1907
The opinion of the court was delivered by
This was a suit to enjoin the city of Topeka from exercising municipal authority over a strip of land as a public, highway. The trial court made special findings of fact and conclusions of law and rendered judgment thereon for the city. The plaintiff prosecutes this proceeding in error.
Fillmore and Clay streets in the city of Topeka are parallel and run north and south. Third street runs east and west, crossing Fillmore and Clay at right angles. In 1880 the plaintiff became the owner of a tract of land in Topeka township lying between Fillmore and Clay streets and north of Third street. When plaintiff became the owner of this land the tract adjoining it on the south had been platted as an addition to the city of Topeka and was called Nilsson’s addition. The Nilsson plat dedicated attract of land forty feet wide on the north thereof from Fillmore to Clay street to the public as a street, and designated it upon the plat as Third street. This tract became a well-defined and traveled road, and has continued to be so used. The land in controversy is a strip twelve feet and nine inches wide and 160 feet long, parallel with and adjoining Third street between Fillmore and Clay streets, and was a part of the plaintiff’s land. It is now claimed by the city as a part of Third street. This is denied by the plaintiff, and she brought this suit perpetually to enjoin the city from exercising control over it.
The findings upon which the court rendered judgment, briefly stated, are as follow: When the plaintiff became the owner of the land it was enclosed. The fence on the south was exactly on the south line, and was in the center of Third street, extending west from the center of Fillmore to Clay. This fence became out of repair, and in 1884 J. M. Meade, the husband of the
It is earnestly argued that the findings are not supported by the evidence. We have carefully examined the evidence and find that each finding is well supported. On some questions the testimony is conflicting, but there is positive evidence to support each material finding.
It is also contended that a judgment should not have been rendered against the plaintiff in view of the finding that it was not the intention of the plaintiff to dedicate this land to the public when she moved her fence inside of her property line in 1884. In order to con
It is also argued that it is not shown that the possession claimed was not permissive. The character of the possession exercised by the public authorities in the present case makes a prima facie case against the plaintiff on this question. The land was used exclusively by the public, without objection by the owner, and the use was of such a character as to deprive the owner from exercising any right of ownership. It was riot necessary that the public verbally assert a right to the land. Such claim of right may appear from the use itself. Under such circumstances the burden of showing that it was only permissive is upon the owner. (Garrett v. Jackson, 20 Pa. St. 331; O’Daniel v. O’Daniel, 88 Ky. 185, 10 S. W. 638; Pavey v. Vance et al., 56 Ohio St. 162, 46 N. E. 898.)
The right having been acquired by user, the easement cannot be broader than the user. The city therefore acquired no rights to any of the plaintiff’s land outside the line actually worked and traveled, by the public. (1 Ell. Roads & Streets, 2d ed., § 174; District of Columbia v. Robinson, 180 U. S. 92, 21 Sup. Ct. 283, 45 L. Ed. 440.)
It does not appear from the evidence in this case, nor is there any exact finding, that the public actually oc
The judgment of the court is not explicit as to the exact amount of the strip which was adjudged to have passed to the public by user, therefore the judgment is modified so as to give to the public only that portion of the tract in question which was actually used by it.