| Kan. | Jul 15, 1893
The opinion of the court was delivered by
This was an action brought by Cyrus Webb against the defendants as public officers, to enjoin them from removing fences and obstructions, and from opening up a supposed highway over the plaintiff’s land. His petition sets forth the authorization and establishment of a highway, 40 feet wide, on the western line of his premises, in 1872, one-half of which was laid upon the plaintiff’s land. He alleged and contends that the road was never actually opened
• We think the plaintiff has no cause to complain. His own allegations show that a road was established and ordered to be opened. In his petition it is averred that
“In the year 1872, proceedings were had relative to laying out a public road on the lands described as follows: [Here follows description of road,] which ran past and included the west line of plaintiff’s land above described; and the said board of county commissioners pretended to appoint viewers of said road, and adopted a favorable report made by said viewers, and in the month of July, 1872, ordered said road to be opened.”
Although plaintiff speaks of it as a “pretended road,” nothing is alleged to show irregularity in the action of the board, nor invalidity in the order which was made. No proof was offered which tended to show that the road was not legally authorized and established. It is contended, however, that the road, if established, has become vacant by reason of nonuser, under the provision of ¶ 5516 of the General Statutes of 1889, which reads as follows:'
“That any county road, or part thereof, which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of seven years at any one
“ Whenever a road is located and established, and everything else is done which either the law or necessity requires to be done, in order to render the road open for public use, the road is not then an ‘ unopened* road within the meaning of chapter 150 of the Laws of 1879.”
In the same case, in speaking of the opening of the road, it is said:
“ It was located and established in full compliance with the law; and there was nothing to prevent the public from traveling over it. It was not closed or inclosed. It was not shut up. It was not obstructed. And if the road was not closed or inclosed or shut up or obstructed, it must have been opened; and a road that is open cannot well be an unopened road.**
In Wilson v. Janes, 29 Kas. 234, 250, the same subject was under consideration, and it was said that
“A public highway might be opened without anything being done by the road overseers for that purpose. The people themselves along the line of the road might open it, or the public travel might at once take possession of the road and use it. And whenever a public road is traveled, it is in fact opened, although nothing may have ever been done by
Here, the road was not only opened, within the meaning of these authorities, at the time it was established, but it has beén actually used and traveled since that time, and was in use by the public when the present action was brought.
“The occupation of a portion of a highway by an individ
In Humphreys v. Woodstown, 48 N. J. L. 595, it is said that
“A road may be opened, used and worked throughout its entire length and yet not used and worked on every foot of its entire breadth, and if the loous in quo, being within the lines of the road, was not actually passed over by the wheels of vehicles, it would not therefore be vacated. It has been settled in this state that encroachments on a highway cannot be legalized by lapse of time.”
The supreme court of Maine, in considering thejsame question, held it to be sound law and good sense
u that the public is entitled to a way three rods wide, as originally laid out, notwithstanding the wrought part of it, and the part actually used by travelers, may have been very much less than that; and that the traveled part may from time to time be widened or otherwise improved, as the growing wants of the public may require, provided such improvements are kept within the limits of the way as originally laid out.” (Pillsbury v. Brown, 82 Me. 450" court="Me." date_filed="1890-03-03" href="https://app.midpage.ai/document/pillsbury-v-brown-4935091?utm_source=webapp" opinion_id="4935091">82 Me. 450.)
See, also, Commonwealth v. McNaugher, 131 Pa. St. 55, and Town of Sumner v. Peebles, 32 Pac. Rep. (Wash.) 221; Elliott, Roads & St. 668.
We think the testimony of plaintiff did not sustain his right to an injunction, and that the court ruled correctly in sustaining the demurrer to the evidence.
Judgment affirmed.