72 P. 793 | Or. | 1903
Mr. Justice Bean
This is a suit to enjoin the defendant from obstructing a public highway running through sections 24, 25, and 36 in township 1 south of range 44 east of the Willamette Meridian, in Wallowa County. All of sections 24 and 25, except one forty-acre tract, was unoccupied public land of the United States until 1901, when it was settled upon under the homestead law. The forty-acre tract was taken as a homestead in 1896. Section 36 was school land, belonging to the state, until January, 1901, when the defendant contracted for its purchase. The road in question is a part of a highway from the Town of Joseph, in the southern part of the county, leading north a distance of about twenty-four miles by and near the Town of Enterprise, and was traveled by the public as early as 1880. In 1888, upon a petition of the requisite number of householders, and after notice thereof, the county court appointed view
That the road was used continuously by the public as a highway for more than ten years prior to the construction of the fence by the defendant is clearly shown by the testimony. S. A. Hart, who has lived near the north end of the road since 1883, and was one of the chain carriers at the time it was surveyed, in 1888, says that it was in use by the public as a road when he first knew it, and has been continuously used ever since; that he and the settlers in that portion of the county have used it since 1888, supposing it to be a public highway by reason of the action of the county court; that over sections 24, 25, and 36 the travel has held to the old, original track, although there has been some slight variation ; that during all this time it has been a plain, open, well-beaten track, and has been traveled by all the people that live in that section of the county ; that it is the only road used by them in going to and returning from the county seat; that through sections 24, 25, and 36 the road passes through a canon or gulch, and there is practically but one track. George S. Craig has lived in the county for twenty years, and has known the road during that time. He testifies that it has