78 P. 436 | Kan. | 1904
The opinion of the court was delivered by
In 1888 a petition was presented to the commissioners of Pratt county asking the establishment of a public road running east and west along a section-line for a distance of ten miles. Conditions existed which, under the statute, authorized the commissioners to dispense with a survey and with the
In 1889, under the provisions of sections 1836, 1837 and 1838 of the General Statutes of 1889 (now replaced by sections 1818 to 1822, inclusive, of the General Statutes of 1901), the county surveyor made a survey of the congressional township in which the greater part of the road lay, in the course of which he located a certain section corner of such section-line fifty-seven feet north of the middle of the road as then used. No attempt was made to change the location of the traveled way until May, 1901, when the road-overseer undertook to make it conform to the results of such survey, that is to say, to move it fifty-seven feet to the north at the place of such changed section corner, by closing the old tract and opening a new one to travel. Plaintiff, being the owner of. the land lying north of the section-line at this place, brought suit against the road-overseer to prevent such action, joining as defend
The notice of the survey required by statute was not given to plaintiff. There was a similar omission as to several other residents, and the published notice to non-residents was defective. The plaintiff claims that by reason of these defects the survey does not bind him. As he was one of the signers of the application for the survey, and was present when his lands were surveyed, the lack of a formal notice to him was not material; he cannot complain of the failure to give notice to others, and by neglecting to appeal he lost the right to question the result. (Close v. Huntington, 66 Kan. 354, 71 Pac. 812; Neary v. Jones, 89 Iowa, 556, 56 N. W. 675; Johnson v. Norton, 3 B. Mon. 429.)
A further objection is made that as the survey was begun May 13 and completed July 30, the 'record not showing any adjournments, plaintiff had no means of knowing when the report would be filed and the thirty days for taking an appeal would begin to run, and that therefore, within the authority of Schwab v. Stoneback, 49 Kan. 607, 31 Pac. 142, he was not required to appeal in order to challenge the surveyor’s findings. In that case, the surveyor was shown to have worked for two days, and then, without an adjournment for any definite time, to have ceased operations for more than two months, and then to have finished the sur
It appears from the findings of the court that the middle of the traveled road in fact coincided with the true section-line as established and marked at the time of the government survey, and that the surveyor made a mistake when he fixed the section corner fifty-seven feet north of it. But this determination is not subject to review in the courts by an independent action, and not having been appealed from it is conclusive upon the plaintiff, and must be accepted as correct for the purposes of this case. The question therefore arises, whether the road marked out by the hedgerows and actually used for general travel, although departing from the section-line at the place under consideration, became a public highway by prescription or dedication. If so, it doubtless follows that the right to open a road along the true section-line, under the order made by the county board, was lost by its remaining unopened for seven years. (Gen. Stat. 1901, § 6058.)
In order for a public road to be created by prescription, or limitation, its use by the public must be adverse. (Smith v. Smith, 34 Kan. 293, 8 Pac. 385; The State v. Horn, 35 id. 717, 12 Pac. 148; District of Columbia v. Robinson, 180 U. S. 92, 21 Sup. Ct. 238, 45 L. Ed. 440; O’Connell v. Chicago Terminal R. R. Co., 184 Ill. 308, 56 N. E. 355; Ell. Roads & High. §175.) As between the' respective owners of adjoining lands, a physical possession held, by one of them of a part
The same principle applies with equal force here. Obviously, prior to the action of the county board the road was marked out and used with reference to the supposed position of the section-line ; after that time the use was continued in the belief that it was in conformity with the order made. It follows that the public and the adjoining owners alike intended that travel should be, and supposed that it in fact was, confined to a strip of land following the section-line. No purpose can be attributed on the one hand to assert, or on the other to admit, a right to use as a highway any ground except such strip. The inadvertent use of any other did not constitute an adverse occupancy, and could not afford a basis for the establishment of a way by prescription, or limitation.
The principle applies equally well to the matter of dedication, which can be accomplished only through the manifestation of an intent to dedicate. (The State v. Adkins, 42 Kan. 203, 21 Pac. 1069.) Here no purpose was exhibited on the part of the owners to give as a highway, or on the part of the public officers to accept as such, any land except a strip bisected by the section-line. These views find support in the following decisions : Stickel v. Stoddard, as Trustee, 28 Kan. 715; Wilson v. Janes, 29 id. 233;
The third paragraph of the reporter’s head-note in Konkel v. Town of Pella, supra, fairly indicates the scope of the decision. It reads :
“Where an attempt was made to lay out a rbg,d along a section line, travel for the period of twenty years a little to one side of the road did not operate as an abandonment of a road as laid out, and an acquisition by prescription of a road of the same width, with the usually traveled track as its center.”
The second paragraph of the syllabus in The State v. Welpton, supra, reads :
“Where a highway is established upon a certain line, the law will not presume a grant or prescription of land outside of such line because of the public use thereof, growing out of a slight and mistaken variance between such use and the true line.”
The ninth paragraph of the syllabus in Hamilton County v. Garrett, supra, reads :
“Where the use of land for a highway is supposed to conform to the highway as laid out, but in fact varies from it, the public do not acquire a right to the strip actually used, in virtue of an adverse possession, because the possession does not correspond with the claim of right; nor in virtue of dedication, because there was never an intent by the owner of the land to dedicate the strip used.”
In the case of Dowdle v. Cornue et al., supra, the third paragraph of the syllabus reads :
“Where a section-line road has been established*184 along a controverted line, but substantially on the section line, it follows and is located on the true section line, whenever that is finally determined.”
There are cases holding in effect that where a traveled road departs from the true line along_ which it has been ordered to be opened its use for the period of limitation will make a public highway of the strip so used. See Patterson v. Munyan, 93 Cal. 128, 29 Pac. 250; Landers v. Town of Whitefield, 154 Ill. 630, 39 N. E. 656 (practically overruling Manrose v. Parker, 90 Ill. 581); Lemasters v. The State, 10 Ind. 391; Strong, Trustee, v. Makeever et al., 102 id. 578, 1 N. E. 502; Bales v. Pidgeon, 129 id. 548, 29 N. E. 34; Taylor v. Bailey, Wright (Ohio), 646; Commonwealth v. Railroad Co., 135 Pa. St. 256, 19 Atl. 1051; Commonwealth v. Dicken, 145 id. 453, 22 Atl. 1043; Hancock v. Borough of Wyoming, Appellant, 148 id. 635, 24 Atl. 88. It may be that some of these cases turn upon statutes or special circumstances distinguishing them from the one at bar. So far as their conclusions conflict with the views already expressed, we must believe that they were reached without giving sufficient weight to the considerations suggested.
An entirely different question is presented where the general travel departs from the true course of a laid-out- road, not by reason of a mistake as to its location, but in consequence of a deliberate purpose to choose a different route. In such cases a design is manifested to substitute one route for another, to which effect may be given consistently with the principle stated. See Gulick v. Groendyke, 38 N. J. Law, 114; Almy v. Church, 18 R. I. 182, 26 Atl. 58; Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341. The case of Shaffer v. Weech, 34 Kan. 595, is in point. There the viewers gave to a road a definite loca
A specific assignment of error is argued relative to the admission in evidence of a deposition which it is claimed was not filed one day before the trial. The trial began at Pratt, January 80; the deposition was taken at Hutchinson, January 28; it is'not shown when it was filed. It may have been filed on the same day it was taken, which would have been in time.
An objection has been made to the jurisdiction of this court to review the judgment rendered, on the ground that the amount in controversy does not exceed $100, but from the showing made it is found that more than that amount is involved.
The judgment is affirmed.
