191 P. 150 | Mont. | 1920
delivered the opinion of the court.
This is a special proceeding to enjoin the defendant from closing a certain road. A temporary restraining order was issued, together with an order to show cause. The defendant moved to dissolve the temporary order and to deny the injunction pendente lite, and, in connection therewith, filed an affidavit setting up the facts as he viewed them. The court held the motion in abeyance until the evidence was all in, whereupon its order was entered dissolving the temporary restraining order and denying the injunction pendente lite. From this order relator appeals.
The complaint alleges, in substance, that the road in question is a public highway established by prescription, and that “said road crossed the lands of the defendant at the time the defendant entered into possession of the lands owned by him”; that the relator maintains a sheep camp on certain lands owned by him adjoining the lands of the defendant, and that-the road in question is the only road by which his lands can be reached; that he desires to cultivate his land and will suffer irreparable injury if deprived of the use of the road. The affidavit filed by defendant supplies the additional facts that defendant is a homestead entryman who filed on the land in the year 1915, and that title is still in the government.
Evidence was introduced on the hearing tending to show that the road in question had been traveled for more than twenty years prior to the commencement of the action, by stockmen and trappers and, since 1915, by settlers in the vicinity. While the testimony is thaf the trail was traveled since “some time in the early ’90’s,” it discloses that the route was not originally the same as at the time of the commencement of the action.
2. It is urged that the wrong, if any, was to the general
3. The only question seriously presented herein is: Was the road, at the time the defendant sought to close it, a public highway ?
It is admitted that the road was never constructed or established by order of the county authorities nor by them worked or repaired, other than that, after Nolan settled on the land and constructed an approach to his place, the county, in constructing a cross-road, made this approach impassable and thereafter, on complaint of Nolan, a county employee repaired it to this extent. The contention of relator now is that sec
“Sec. 1337. 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.”
“Sec. 1340. A highway laid out and worked and used as provided in this Act 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.”
These provisions are not, however, as counsel seem to urge, original declarations on the subjects embraced, but are merely the re-enactment, on the codification of the highway laws, of sections 2600 and 2603 of the Political Code adopted July 1, 1895, and any change in the law or in the status of the public by reason of such declarations must be considered as of the last-mentioned date.
Section 2477 of the Revised Statutes of the United States
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 be a public highway, or by the opening and dedication of a road by an individual owner of the land, or on a partition of real property. On that date it was 'declared by section 1340 that thereafter no route of travel used by one or more persons over the lands of another should become a public highway, except in the manner provided in the statute. Whether the establishment of the road was before or since July 1, 1895, by whatever method it was accomplished, it must have been under
Sections 1337 and 1340 were repealed in 1913 (Laws 1913, p. 139); but the provisions of section .1337 were re-enacted as section 3 of Chapter 1 of the “General Highway Law,” and, on the amendment thereof, were continued in force (Laws 1915, p. 319). The provision contained in section 1340, concerning the establishment of a road by use, does not appear in the “General Highway Law” of 1913-15. However, whatever the effect of the omission, it cannot aid relator in this action, as the period of the statute of limitations referred to is ten years. (See. 6432, Rev. Codes.)
This precise question was before the supreme court of Washington in the case of Vogler v. Anderson, 46 Wash. 202, 123 Am. St. Rep. 932, 9 L. R. A. (n. s.) 1223, 89 Pac. 551, and it was there said: “The trial court based its judgment on the theory that the Act of Congress granting a right of way for the construction of public highways over public lands not reserved for public use was a grant in praesenti, and became effective the moment the public began using the way as a public highway, and that-it is not necessary that a way should be used for any specific time in order to constitute an acceptance of it as a grant under this statute. * # * But it was not said, or intended to be said, that a user for any lesser period than seven years would be sufficient for that purpose. On the contrary, to hold that a lesser period would suffice in this state would violate the terms of the-grant made by Congress. The grant is for a right of way to establish a public highway, and a public highway must be established in some of the ways provided by statute before the grant takes effect. * # * The shortest period allowed by statute to establish a highway by user in this .state is seven years, * * * and
In 1898 this court, in State v. Auchard, 22 Mont. 14, 55 Pac. 361, held that “Section 2600, Political Code [now section 1337, Rev. Codes] * * * 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, and as recognizing the existence of highways by prescription when they had been used or traveled by the people generally for the period named in the statutes of limitation. It is also doubtless true that if the road had been used and traveled by the public generally as a highway, and is treated and kept in repair as such by the local authorities whose duty it is to open and keep in repair public roads, proof of these facts ‘furnishes a legal presumption, liable to be rebutted, that such a road is a public highway.’ ”
The case of Murray v. City of Butte, 7 Mont. 61, 14 Pac. 656, cited by counsel as sustaining relator’s contention, is not in conflict with the declaration in the Auchard Case, or with anything said herein. At the time the opinion was rendered, the statutory period was five years (sec. 29, Chap. II, Title III, Comp. Stats. 1887). The answer showed that the road in question had been in existence since 1866; plaintiff’s notice of location was filed in 1875. The court said: “Section 2477 was a grant by the government of an easement, and defendant sought to provean acceptance prior to the location upon which the patent was based. If such an acceptance of the grant of the easement could have been established, it would have been valid against the government.” The proof suggested would, we take it, have been that of a right by prescription.
Likewise the.opinion in the case of Butte v. Mikosowitz, 39 Mont. 350, 102 Pac. 593, but bears out the statement that the proof offered must show the establishment of a road in some one of the ways recognized by law in order to constitute an acceptance of the grant.
In Montana Ore. Pur. Co. v. Butte & B. Consol. Min. Co., 25 Mont. 427, 65 Pac. 421, this court held: “Where the claim is founded upon use only, without color of title, it must appear that the use has been confined to the particular way for the full time of the prescribed limitation. (State v. Auchard, supra.) Travel by the public generally over uninclosed land, but not confined to any particular way, will not inaugurate such an adverse claim as will * * * ripen into a right which may be asserted against the owner.”
Affirmed.