218 P. 1053 | Mont. | 1923
prepared the opinion for the court.
In July, 1922, the plaintiffs, as the board of county commissioners of Fergus county, instituted this action to enjoin the defendants from closing an alleged public highway over certain lands owned by or under the control of the defendants. A temporary restraining order was issued, together with an order to show cause. Thereafter the trial court sitting without a jury, after a hearing on the merits, and viewing the premises, perpetually enjoined the defendants from obstructing the road 'described. The complaint discloses that plaintiffs base their right to the relief sought upon the ground that for more than ten years prior to July 1, 1895, a public highway existed and was maintained over and across the defendants’ lands and that during said period of time the same was used continuously by the public until obstructed by the defendants. It is further alleged that the use thereof is necessary to the public and that timber cannot be conveyed from the mountains at the head of said road unless the obstructions are removed. The answer admits the obstructing of the land by the use of locked gates, denies the material allegations of the complaint, and alleges that the defendant Irish has owned the lands described for more than fifteen years and that during said time the same were inclosed by fence, and that no highway, either private or public, was ever established or maintained across said lands. The defendants’ motion for a new trial was denied. This appeal is from the judgment.
The record discloses that the road involved in this action passes through a valley known as Timber Creek. On behalf of plaintiffs, the evidence introduced tends to establish the following: W. A. Hedges testified that he first visited Timber Creek Valley November 6, 1881, with a sheep outfit and that he traveled by foot, at which time there was a trail there used by two ranchers and that its use increased materially from 1881 to 1906. He was unable to testify, however, whether or not the road touched or passed over the land déscribed in the complaint.
The witness Neill first arrived on Timber Creek in May, 1883,- at which time there was a road or trail along the creek and he was employed to haul poles for use in the spring roundup of cattle, and in 1886 herded cattle in the vicinity, since which time the use of the road has increased. After 1887, the country being open, he did not have occasion to go over the trail very often, perhaps “once a year, twice a year, three times, not over that; maybe some years not at all,” and that there is little change in the road where there is no fence, but that it has changed some. Manifestly this is not sufficient proof to establish the construction of a public highway and that it was used as such on July 1, 1895.
In the instant case it is conceded by respondents that if the road in question ever became a public highway it was created by use or prescription only, and in determining this question it is necessary to examine our Code sections applicable. Section 1612, Revised Codes of 1921, was originally enacted in 1895, as section 2600, Political Code of 1895, and read as follows: “All highways, roads, streets, alleys, courts, places and bridges laid out or erected by the public or now traveled or used by the public or if laid out or erected by others, dedicated or abandoned to the public or made such by the partition of real property are public highways.”
In the case of State ex rel. Dansie v. Nolan, supra, this court construed the foregoing section, the opinion reciting: “Prior to July 1, 1895, a public highway could have been established either by the act of the proper authorities, as provided by the statute, or by use by the public, for the period of the statute of limitations as to lands, of the exact route confined to the statutory width of a highway, later claimed to
Section 1340, above referred to, was originally enacted as section 2603, Political Code of 1895, and provided: “A highway laid out and worked, and used as provided in this chapter must not be vacated or cease to be a highway until so ordered by the board of county commissioners of the county in which said road may be located; and no route of travel used by one or more persons over another’s land shall hereafter become a public road or byway (highway?) by use, or until so declared by the board of county commissioners, or by dedication by the owner of the land affected.”
The instant ease was tried and determined upon the theory that the use of the road involved herein should date back to July 1, 1890, in order to meet the requirements of the statute fixing the period for acquiring title by prescription, which was five years prior to the enactment of section 1612, supra, as though the land over which the road passed was the subject of private ownership. The foregoing principle was announced by this court in the case of Violet v. Martin, 62 Mont. 335, 205 Pac. 221, wherein the court said: “To arrive at a conclusion that a way over the lands of another is a public road, the evidence must be convincing that the public have pursued a definite, fixed course, continuously and uninterruptedly, and coupled it with an assumption of control and right of use adversely under claim or color of right, and not merely by the owner’s permission, over it for the statutory period (five years before the adoption of the 1893 [1895] Code and ten years since), without which prescriptive rights cannot attach.”
The record before us fails to disclose any competent evidence tending to show that the road was established, created or constructed five years or more prior to July 1, 1895, or at
We do not wish to be understood as holding that the continuous use of a road by the public for five years prior to July 1, 1895, was necessary to establish a public highway over unappropriated public lands in order to meet the requirements of the statute. (Murray v. City of Butte, 7 Mont. 61, 14 Pac. 656; Hughes v. Veal, 84 Kan. 534, 114 Pac. 1081.)
In the case of State v. Auchard, 22 Mont. 14, 55 Pac. 361, in construing section 1612, supra, this court said that this section “must, in so far as applicable here, be interpreted as a remedial statute, curing irregularities, but not supplying jurisdiction, where none was acquired in the creation of the roads,” etc. (See, also, City of Butte v. Mikosowitz, 39 Mont. 350, 102 Pac. 593; Bernard Realty Co. v. City of Butte, 55 Mont. 384, 177 Pac. 402; Vogler v. Anderson, 46 Wash. 202, 123 Am. St. Rep. 932, 9 L. R. A. (n. s.) 1223, 89 Pac. 551; Town of Rolling v. Emrich, supra.)
We have carefully reviewed all questions of fact arising upon the evidence presented in the record and have determined the same, as well as questions of law. (Sec. 8805, Rev. Codes 1921.) No good cause appears for granting a new trial or ordering the taking of further evidence in the court below. We are therefore of the opinion that the evidence preponderates most strongly against the findings of the trial court and that they must be set aside. (Sanger v. Huguenel, 65 Mont. 236, 211 Pac. 349.)
We recommend that the judgment be reversed and the district court directed to find for the defendants and render a decree accordingly.
Per Curiam: For the reasons given in the foregoing opinion the judgment appealed from is reversed and the cause remanded to the district court, with directions to find for the defendants and render a decree accordingly.