97 Neb. 728 | Neb. | 1915
The plaintiff is the owner of the west half of the southwest quarter of a section of land in Pierce county. The defendant is road overseer, and was proceeding to remove a fence which the plaintiff had placed on the section line between his 80 and section 20 on the south, on the theory that it obstructed the public road'. The dispute is as to whether there is a public road running east and west be
There is evidence in the record as to the use of this road by the public for more than 20 years/ The plaintiff cites Lewis v. City of Lincoln, 55 Neb. 1, in which it was said: “To establish a highway by prescription there must be a continuous user by the public under a claim of right, distinctly manifested by some appropriate action on the part of the public authorities, for a period equal to that required to bar an action for the recovery of title to land.”' He also cites other similar decisions. This rule applies-when it is attempted to establish a highway by prescription only. When there has been an attempt by the public authorities to open a road, and pursuant thereto the public, supposing that the road has been established by regular proceedings, have used it as a public road for so long a. period, that rule is not applied with such strictness. In such case any attempt of the authorities to improve the road with the knowledge of the adjacent landowners, and without objection on their part, is important in determining whether the public has used the road under claim of right.
It appears that a petition was filed with the county board asking for the opening of a road on the section line, commencing at the southwest corner of section 17, and running thence along the section line five miles east. The county commissioners’ record and evidence show that in December, 1882, this petition “was granted as prayed for.” This plaintiff was then one of the three county commissioners, and it appears that a short time afterwards he built a fence along the south side of his land about two rods north of the section line. This fence appears to have remained in that position until about five or six years be
We cannot attempt a complete analysis of the evidence in this case in regard to the use of this road, but it seems clear that at the time the action was taken by the county authorities it was considered by the authorities, and by the public generally, that the road had been opened and had become a public highway. It must have been so considered by the plaintiff himself, as he was not only a member of the board of county commissioners at the time, but also
The evidence appears to be sufficient to support the decree, and the judgment of the district court is
Affirmed.