86 Neb. 834 | Neb. | 1910
This is an action in equity to enjoin the defendant from trespassing upon the plaintiff’s land and for general equitable relief. The plaintiff prevailed, and the defendants appeal.
I. The record discloses that plaintiff since 1871 has controlled, and since 1898 has owned., the northeast quarter of section 19, township 19, range 6 west, in Boone county. The defendant, J. L. Nofsinger, owns the south half of the northwest quarter of section 20 in said town and range, and for many years has rented the northwest quarter of section 19. There is a public road on all sides of said section, and one north and south through the center thereof. Some time prior to 1884 a public schoolhouse was built in the southeast corner of the northwest quarter of the section. Since the construction of said building, children and adults residing east and southeast of that point, in going to and from the school-house, have traveled over the plaintiff’s land; the defendant during about the same period, in going to his landlord’s premises and returning therefrom, has traveled across said - land, and other persons occasionally have crossed said premises. In 1894 the plaintiff broke the raw prairie in said quarter section, and thereafter has cultivated the soil, except in and along Plum creek, which runs diago
In Graham v. Hartnett, 10 Neb. 517, we held that mere user by the public of a way over wild, uninclosed land, or the construction of a bridge in the line of that Avay by the authorities Avithout the knowledge or consent of the OAvner of the fee, would not set the statute of limitations running against him. These were the only points involved in that case. Subsequently the effect of user by the public in connection with a defective attempt by the public authorities to locate a highway, or in conjunction Avith positive acts or declarations by the OAvner indicative of an intent to dedicate his land to public use, has been considered by this court in numerous cases. In Engle v.
Counsel for the defendants argue that the district court felt bound by the law announced in Lewis v. City of Lincoln, supra, they challenge the soundness of that rule, and assert that but for said case the decree would have been in favor of their clients. We find nothing in the record to support this assertion. The law is correctly applied to the facts in Lewis v. City of Lincoln, supra. The plaintiff in that case sought to have its title quieted to a strip of land within the defendant’s inclosure, but claimed by the plaintiff as part of Twenty-seventh street. There was no proof of a dedication by any owner of the land, and the testimony ebneerning an easement was insufficient to sustain a judgment for the plaintiff upon that issue. The public had a way along the street, but the city did not have possession of, or the public use of, any part of the tract in dispute. Engle v. Hunt is approved in Lewis v. City of Lincoln. In Hill v. McGinnis, 64 Neb. 187, Lewis v. City of Lincoln is cited in the syllabus, but Engle v. Hunt is also referred to with approval in the body of the opinion. The travel in that case had
A consideration of the opinions of this court upon the subject impels us to say that the mile announced in Lewis v. City of Lincoln, supra, and the other cases following that decision, should not be strictly applied. Proof that the officers having control of the highways in a county or municipality worked a way or exercised other acts of dominion over it to the knowledge of the owner of the fee should convince the trier of fact that from thenceforward the use was adverse to such owner, but circumstances may be such in a particular Case that the road overseer, the county commissioners or the supervisors would have no occasion to work the road, to compel the landowner to cut the weeds growing along the beaten path, or to exercise any other overt act to indicate they were assuming jurisdiction over a highway, and yet the user may have been under a claim of right to the knowledge of the owner of the fee. In such cases the litigant should consider what has been said in Engle v. Hunt, Brandt v. Olson, and Kendall-Smith Co. v. Lancaster County, supra. Giving the defendants the benefit of the last cited cases, we are satisfied the evidence amply sustains the judgment of the district court.
2. The defendants argue that the plaintiff has an adequate remedy at law, and that a court of equity is without jurisdiction to enjoin them from committing a trespass upon the plaintiff’s land. The subject is an interesting one, but will not be pursued, because the defendants made no objection to the form of action before the decree was rendered, but asked for equitable relief, to the end that they might be confirmed in a right to travel the path across the land in controversy. Having voluntarily submitted to the jurisdiction of the court, they will not be heard to say, after decree has been entered
The judgment of the district court is right, and is
Affirmed.