68 Neb. 329 | Neb. | 1903
The plaintiffs are the owners and in possession of lands lying on both sides of a certain section line. A section-line road on and along such section line, and on the plaintiffs’ land, was duly opened in 1879, and continuously open to travel until 1892. In the year last mentioned a large bridge on the road was destroyed, whereby the public use of the road was interrupted. Afterward, in the same year, the then owner of the said lands, now belonging to the plaintiffs, and their immediate grantor, erected substantial fences across that portion of the boundaries of the land crossed by the road. In 1899, and after plaintiffs had acquired title to the lands, the defendant, as road overseer of the road district in which the lands lie, duly notified the plaintiffs .to remove the fences, as obstructions to a public highway, and that if they should fail to comply with such notice within a reasonable time, he would remove the fences in the manner provided by law. The plaintiffs then commenced this action to restrain the defendant from removing the fences, and a temporary injunction was allowed. On a final hearing, the court found for the defendant and entered a decree accordingly. The plaintiffs appeal.
The only question presented by the record is whether the road was vacated by reason of its nonusage from 1892 to 1899, and the determination ®f that question depends on another, namely, whether the proviso contained in section 3, chapter 78, Compiled Statutes (Annotated Statutes, 6006), was intended to apply generally, or only to such roads as had not been used for the period of five years prior to the enactment of that section. If it was intended to apply generally, the decree of the district court is wrong and ought to be reversed, otherwise, it is right and should be affirmed.
In Henry v. Ward, 49 Neb. 392, 396, Irvine, C., speaking for the court, says: “The object of section 3 was to remove
It is recommended that the decree of the district court be
Affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.