34 Kan. 293 | Kan. | 1885
The opinion of the court was delivered by
This was an action brought by Ed. R. Smith against S. W. Smith, to recover damages for obstructing a public road. It was admitted that the obstructions were placed as alleged in the petition. Nominal damages only were claimed upon the trial, the real contest between the parties being whether there was a legal highway at the points obstructed. Judgment was rendered for plaintiff. The defendant’s motion for a new trial being overruled, he brings the case here.
The demurrer to the petition was properly overruled. The injury alleged is special and peculiar to the plaintiff, if a public highway in fact exists, as claimed by him, and therefore he has his right of action. (Bobbett v. The State, ex rel., 10 Kas. 9; Nixon v. School District, 32 id. 510.)
If the defendant desired the situs or place of the alleged way set forth in the petition fixed with greater certainty, the
The court instructed the jury that “the alleged highway or route of travel described in the petition had not been established or laid out under the statute;” but upon the theory that there was evidence before the jury tending to show the road had. been established by use or prescription, instructed them that—
“If they believe from the evidence that the alleged road or' way over the lands of plaintiff and defendant had been used continuously for public travel and public use, with the knowledge, assent or acquiescence of the owners of the land, for fifteen years previous to the time of the alleged obstructions, they were authorized to find the same to be a public road.”
The court further instructed the jury that—
“Persons in the possession or occupancy of land, claiming homestead or preemption rights therein under the general government, and afterward obtaining the title thereto from the government, are owners of the land so as to assent or acquiesce in the use of a portion thereof as a public highway.”
The court refused to give the following instructions requested by the defendant:
“ 1. In order to constitute a highway by prescription or use, the use and enjoyment of it by the public for a highway must have been continuous for the period of fifteen years under a claim of right, and must generally be so continued and uninterrupted with the knowledge, assent or acquiescence of the owner of the land.
“ 2. Use alone of uninclosed and wild prairie land will not support a prescription for a highway, and therefore no use alone by the public of a way over uninclosed prairie land, however long continued, will establish a highway.
“3. To constitute a dedication of a highway to the public, the intention on the part of the owner of the land to dedicate it, and an act of dedication and acceptance by the public, must be shown.”
The testimony tended to show, among other things, that Ezra Smith, the father of the parties, settled on the N. E. J of section 14, township 22, range 23, in Linn county, in 1857, and in that year made a filing thereon; that the alleged
The judgment of the district court will be reversed, and the cause remanded for further proceedings.