34 Kan. 556 | Kan. | 1886
This was a criminal prosecution under § 17 of the act relating to roads and highways. (Comp. Laws of 1879, ch. 89, § 17.) The charge was that the defendant, A. Horn, willfully obstructed a public highway in Leavenworth county. The defendant pleaded not guilty, and also filed a special plea. The case was tried in the district court of Leavenworth county, before the court and a jury, which trial resulted in a verdict and judgment against the defendant. The judgment was, that the defendant should pay a fine of $75 and the costs of suit; and to reverse this judgment the defendant now appeals to this court.
The main or principal question involved in this case is, whether the road or highway which the defendant is charged with having obstructed was in fact and in law a public road or highway, or not. Several other questions, however, are involved in this main or principal question: First. Has the state the power or authority to establish a public road or highway at the place where it is claimed that this road or highway was established and obstructed? Second. If the state has any such power or authority, then has the same been exercised in such a manner as to create any such public road or highway? For the purposes of this case, we shall assume that the state has the power and authority to establish a public road or highway at the place where it is claimed that this road or highway was established and obstructed, and shall pass at once to the other question, whether this road or highway was in fact established in such a manner as to make it a legal road or highway. If this road was in fact and in law a public l’oad or highway, it was such only by virtue of its having been established by the board of county commissioners of Leavenworth county in the year 1869, under the act of the legislature of March 2,1866, relating to ro.ads and highways. (Gen. Stat. of 1868, ch. 89.) The road record of such board of county commissioners was introduced in evidence by the state, over the objections of the defendant, to prove that such
It further appears from the agreement of the parties, that the defendant in this case was in the employment of the owner of the land over which the supposed public road is alleged to have been established; and that he did not obstruct such road any further than was necessary in the quarrying of stone under the authority, and for the use and benefit of his em
We have examined all the authorities cited by counsel for the state, and do not think that any one of them is applicable to the facts of this ease. Some of the language used in the opinion in the case of Comm’rs of Leavenworth County v. Espen, 12 Kas. 531, may seem to have some application, but still that case was very different from this. That was an action for a perpetual injunction to restrain the county commissioners of Leavenworth county from opening a road, for the reason that the plaintiff, who was the owner of the land through which the road was established, had no notice of the contemplated establishment of the road prior to its establishment, and consequently obtained no damages or compensation; and this want of notice was the only irregularity disclosed or urged in that case. There was no claim in that case, as in this, that the viewers appointed by the county board did not act at all. It must also be remembered that this is a criminal action, in which the defendant, who was acting for and under the express authority of the land-owner, is charged with willfully obstructing a highway. Such was not that case.
The judgment of the court below will be reversed, and the cause remanded for a new trial.