99 Minn. 450 | Minn. | 1906
This action was brought in the district court of the county of Jackson to enjoin the defendant town and its board of supervisors from-removing certain fences erected on the land of the plaintiff. The defense was .that the locus in quo was a public highway; that the fences were in the highway, and were removed by the defendants as an obstruction to its use. The cause was tried by the court without a jury, findings of fact were made, and, as a conclusion of law, judgment was ordered for the plaintiff on the merits. The defendants appealed from an order denying their motion for a new trial. The conclusion of law of the trial court that the plaintiff was entitled to judgment necessarily rests upon the proposition that the locus in quo was not a public highway. The correctness of the premises presents the only question for our consideration.
If any public highway was shown in this case it was one acquired by statutory user. The evidence shows that an attempt was made in 1871 by the town supervisors to lay out a highway along the section line on the south side of the plaintiff’s land, but the only evidence to support this claim of the plaintiff that a highway was legally laid was an order of the supervisors purporting to lay the road along the section line. This order recited on its face that the action of the supervisors was based upon a petition of six legal voters instead of six freeholders as then required by statute. Laws 1868, p. 85, c. 48, § 2, which was repealed by Laws 1873, p. 114, c. 5, § 74. The order was prima facie evidence of the jurisdictional facts therein recited.. A petition such as was required by statute was a jurisdictional prerequisite to the laying out of a legal highway. Cassidy v. Smith, 13 Minn. 122 (129). Therefore, the order failed to recite a jurisdictional fact and, standing alone, the order was not sufficient to show that a. legal highway had been laid out. The evidence is practically undisputed, and the trial court so found that at and along the locus in quo a road was opened, and that ever since the year 1889 it had been graded, bridged, traveled, kept in repair, and worked continuously as a public highway. The court, however, found that such highway-had been opened, traveled, used, kept in repair, and worked as a public highway under the mistaken belief on the part of the town supervisors and the plaintiff that such highway was in fact on the
The basis of the trial court’s conclusion of law that there was no highway at the locus in quo was the fact that the road had been opened, kept in repair, worked, and traveled as a public highway continuously for more than six years upon the mistaken belief of the plaintiff and town supervisors that the road was on the section line. And, further, that except fo'r such mistake a public highway at the locus in quo by statutory user had been established. The pivotal question then, is this: Did such mistaken belief of the parties bar the public from ac-
quiring a public highway by statutory user? We answer the question in the negative.
The statute applicable to this case is this:
When any road or portion thereof shall have been used and kept in repair and worked, for six years continuously as a public highway, the same shall be deemed as having been dedicated to the public, and be and remain until lawfully vacated a public highway whether the same has ever been laid out as a public highway or not. G. S. 1894, § 1832.
See amendment to the statute as to the width of highways so acquired. Laws 1905, p. 85, c. 66, § 1.
This court in a number of cases has considered the nature and effect of this statute. In the case of Miller v. Town of Corinna, 42 Minn. 391, 44 N. W. 127, it was held that “the statute is, in effect, similar to the statute of limitations as applied to real estate. The pwner must bring his action within the time specified from the commencement of a continuing disseisin, whether he has actual notice of the disseisin or not, or be barred.” In Marchand v. Town of Maple Grove, 48 Minn. 271, 51 N. W. 606, the statute is declared to be “a
Such being the nature and effect of the statute, it follows that the decisions of this court,-with reference to the effect of a mistake of a party as to the location of a boundary line, upon his claim of adverse possession, are here pertinent if not strictly in point. In the case of Seymour, Sabin & Co. v. Carli, 31 Minn. 81, 16 N. W. 495, the defendant or his grantor entered upon the disputed parcel of land and held actual possession thereof claiming title thereto under a mistake as to the location of the boundary, line between his land and the adjoining land of the plaintiff. It was the contention of the plaintiff that by reason of the mistake the possession of the defendant was not adverse. The court conceded that the plaintiff’s claim was sustained by the decisions of the courts of some of the states, but declined to sustain the claim and said: “In view of what seems to us to be the plain, practical purpose of the statute which deals with the question of actual possession by the adverse claimant in such cases, this reasoning does not appear to be sound, and we are unable to assent to the conclusions sought to be reached by it. The result would be, in the case at bar, that the statute would never run, whatever might be the character of the occupancy or improvements, or the length of time continued.” The rule so laid down was followed in Ramsey v. Glenny, 45 Minn. 401, 48 N. W. 322, 22 Am. St. 736.
Reading the statute in question in the light of those decisions, we find that it unqualifiedly declares that any road, regardless of its origin, which has been used, kept in repaif, and worked as therein provided shall be and remain a public highway until lawfully vacated. It is true that the statute also declares that such a road “shall be deemed as having been dedicated to the public,” however, it is obvious that the right of the public to claim such road as a highway does not rest on any in
Order reversed and a new trial granted.
