City of Beatrice v. Black

• Decision Date: 17 December 1889
• Citation: 28 Neb. 263,44 N.W. 189
• Parties: CITY OF BEATRICE v. BLACK ET AL.
• Court: Nebraska Supreme Court

28 Neb. 263

44 N.W. 189

CITY OF BEATRICE

v.BLACK ET AL.

Supreme Court of Nebraska.

Dec. 17, 1889.

Syllabus by the Court.

1. Where a public road has been located by proceedings under the statute, and opened and traveled by the public for more than 10 years, the public thereby acquire an easement therein; and the court will not examine the original proceedings for the laying out of the road to determine whether or not they were valid.

2. The fact that a large portion of the travel over a public road, instead of passing over the entire length of such road, turned off, and passed over a shorter route to the city, will not prevent the running of the statute in favor of the public of that portion, not generally used, where there has not been an entire non-user of such road.

Appeal from district court, Gage county; APPELGET, Judge.

Action by the city of Beatrice against Black Bros., William W. Buchanan, and Charles F. Buchanan. Plaintiff and the Buchanans appeal.L. M. Pemberton, for plaintiff.

A. H. Babcock, for the Buchanans.

R. S. Bibb, for appellee.

MAXWELL, J.

This is an action to enjoin the defendants from obstructing an alleged public road in the city of Beatrice. It is averred in the petition that “the defendants William Black and Cochran S. Black, as partners, under the name and style of Black Bros., own lot 32 in Green's subdivision, being a part of the city of Beatrice, Neb., and the defendants William W. Buchanan and Charles F. Buchanan own lot 1 in block No. 35 of Smith Bros.' addition to said city of Beatrice; that there is a legally established highway, running north and south, between said two lots, 33 feet of which highway is on the west side of said lot 32, in Green's subdivision, and 33 feet is on the east side of said lot 1 of block 35, in Smith Bros.' addition to the city of Beatrice, Neb.; that said highway was established long before said Green's subdivision and said Smith's addition were platted and recorded, and have been traveled and used as a public highway for more than ten yars last past; that the defendants William Black and Cochran S. Black placed a fence across the east half of said highway, where it crossed said lot 32 of Green's subdivision, and thereby obstructed said highway, which fence was, on the 1st day of June, 1887, removed by the plaintiff herein, and that part of said highway opened up to the public use, and the nuisance thereby created was abated; that within the last two months said Charles F. and William W. Buchanan have built and erected a fence across that part of said highway which passes over said lot No. 1 of block 35 of Smith Bros.' addition to said city of Beatrice, and have thereby obstructed said highway, and rendered the west half of it impassable by the public and have thereby created a nuisance, under the claim that they own said lot, and have a right to close up said highway; that the defendants own the property, as above stated, subject to the public easement created by the location and use of said highway as above stated, and by the aforesaid acts have been guilty of obstructing said highway; that the defendants Black and Black threaten to rebuild the fence across the east half of said highway, at the upper and lower ends of said lot 32, where said highway crosses said lot, and threaten to close up said highway at said points, and, unless restrained by an order of this court, will do so, to the detriment of plaintiff and the public generally, who travel said highway; that said highway connects and forms a part of Thirteenth street, in said city of Beatrice, and has always been used in connection with said Thirteenth street, and it is only through that that access can be had to Grant street, in said city, (which latter street is one of the main streets running east and west through said city of Beatrice,) from Thirteenth street, and by closing said highway defendants prevent access to East Grant street from said Thirteenth street, in said city, and the said highway is wholly within the corporate limits of said city of Beatrice.” To this petition, William and Cochran Black filed an answer, in which they admit the incorporation of the city; that they are the owners of the real estate described in the petition,--and allege that the public road in question has not been used for five years next before the commencement of the action, and hence has ceased to be a public road. Charles F. Buchanan and William W. Buchanan, in their answer, allege that they hold the title to the property described in the petition only in trust, as the administrators of the estate of Job Buchanan, deceased. They also plead non-user of the road for five years.

On the trial of the cause the court rendered a decree as follows: “This cause came on for hearing upon the petition, the answer of defendants Charles F. Buchanan and William W. Buchanan, and the evidence, and was submitted to the court; on consideration whereof, the court finds that there was no notice given as provided by law, and therefore there is no legally laid out road. The court finds that that portion of said road lying east of quarter section line has not been used as a public highway for ten years. The court...