138 Iowa 426 | Iowa | 1907
Lead Opinion
The plaintiff acquired title to the N. W. Y of section 16 in township 85 N. of range 43 west of the fifth P. M. in November, 1900, and since then has resided thereon. The fence along the north side is near the section line, six feet south of it at the east end, and one foot at the west end, and is substantially where it or fences replaced have stood for thirty or thirty-five years. Prior to 1894 there had been some travel along the north line of section 16 ever since it had been fenced, but not in any beaten track nor within the ordinary boundary of a highway, as the section to the north was not fenced and the main thoroughfare extended diagonally across the southwest quarter of section 9' to its western boundary and then on to the north. The land appears not to have been cultivated, and the travel was not such as to mark it with any degree of certainty as a highway. There was some testi
But where the road has been established and continually used, the mere fact that the fences bordering it are not on the true line and the portion beyond has been occupied
The public has a mere easement subject to which the land is held by the owner, and if the facilities are ample for use by the public for the time no one feels specially interested in seeing that the lines of the road have been partially encroached upon by the adjoining proprietor. Indeed, the motives of a road officer who should require the removal of a fence, slightly encroaching on the highway, if ample space were still left for travelers, would be likely to be questioned. The character of such an improvement does not indicate a purpose to appropriate the land inclosed. None of the traveled portions of the highway included, no right, then enjoyed or apparently desired, is infringed. The acts are not inconsistent with the purpose of merely temporary occupancy by permission or suffrance. Lane v. Kennedy, 13 Ohio St. 42. In Fox v. Hart, 11 Ohio, 414, the public had been deprived of a part of the original road for eighteen years, and it was held that there was “ nothing to authorize the presumption that any portion of it had been abandoned or would not be occupied as soon as the public convenience should require. . . . He (abutting owner) had no reason to suppose that such portion was lost by his encroachment or the right to it in anywise impaired, nor was it so lost or impaired.” And such is the tenor of the decisions generally. On reason and authority then we reach the conclusion that, where there has been no practical location of boundaries of a highway as surveyed, the public is not estopped or bound by acquiescence in the maintenance
The decree is affirmed.
Dissenting Opinion
(dissenting).— The foregoing opinion is a broad departure from the rule which has been followed by this court in highway cases for more than a quarter of a century. To accomplish that result we here explicitly overrule one case that has hitherto passed unquestioned, and undermine or disregard the authority of a dozen others. The law as we have heretofore recognized and applied it has worked no wrong or hardship to the public or to the individual citizen, while the rule now announced opens the door to endless and vexatious litigation over lines and boundaries which have been observed and acquiesced in by all parties in interest for generations. I see nothing to be gained by this radical change of point, but on the contraiy believe it will develop conditions which should be carefully avoided. For these reasons I cannot concur either in the result or in the reasoning upon which it is reached.