85 N.W. 47 (Neb. 1901), 9,370, Streeter v. Stalnaker

Docket Nº:9,370
Citation:85 N.W. 47, 61 Neb. 205
Opinion Judge:SULLIVAN, J.
Party Name:WILLIAM H. STREETER, APPELLANT. v. JOHN STALNAKER, APPELLEE
Attorney:Hainer & Smith, for appellant. J. M. Day, John A. Whitmore, and John J. Roach, contra.
Case Date:January 23, 1901
Court:Supreme Court of Nebraska
 
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Page 47

85 N.W. 47 (Neb. 1901)

61 Neb. 205

WILLIAM H. STREETER, APPELLANT.

v.

JOHN STALNAKER, APPELLEE

No. 9,370

Supreme Court of Nebraska

January 23, 1901

APPEAL from the district court for Hamilton county. Tried below before SEDGWICK, J. Affirmed.

AFFIRMED.

Hainer & Smith, for appellant.

J. M. Day, John A. Whitmore, and John J. Roach, contra.

OPINION

SULLIVAN, J.

The only controverted question in this case is whether there exists a highway across a quarter section of land occupied and claimed by the plaintiff, William H. Streeter, by virtue of an entry made by him in 1894, under the timber culture act. John Stalnaker, who is the overseer of road district No. 51, in Hamilton county, asserts the existence of a public way over the land, and asks that the plaintiff be enjoined from obstructing it. The court decided in favor of the defendant, and from a careful examination of the record we are well satisfied that the decision is warranted by the proof.

In 1877 the county board of Hamilton county, in compliance with a petition presented to it, appointed J. R. Thomas a special commissioner to inquire into the expediency of establishing a road leading to the wagon [61 Neb. 206] bridge across the Platte river south of Central City. Mr. Thomas employed chainmen and an axeman and proceeded to survey, plat and mark out a road over the land now in controversy. His report was filed with the county clerk and was accepted by the county board. Afterwards, in the same year, culverts were built by the road overseer to make the road passable; and it has been traveled ever since to some extent by people going to Central City to trade or to Hoard's ranch with grain. "The road," in the language of one witness for the defendant, "has been traveled constantly, not all of the time by all of the people, but by a portion of the people all the time." It is doubtless true that the travel has diverged to some extent from the line of the road as located by Thomas, but we think the evidence quite sufficient to justify the conclusion that the deviation was not substantial. In order to show that the road was established by user it was not necessary to prove an exact adherence to the line of the survey at all points. It was enough to show that there was no permanent or material deflection. City of Beatrice v. Black, 28 Neb. 263, 44 N.W. 189.

It is said...

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