Barrett v. Hand

• Decision Date: 05 March 1954
• Docket Number: No. 33450,33450
• Citation: 158 Neb. 273,63 N.W.2d 185
• Parties: BARRETT v. HAND et al.
• Court: Nebraska Supreme Court

Page 185

63 N.W.2d 185

158 Neb. 273

BARRETT v. HAND et al.

No. 33450.

Supreme Court of Nebraska.

March 5, 1954.

Syllabus by the Court.

1. A traveler actually hindered may personally remove an obstruction in a highway, as may anyone else if specially injured, but it is a condition to the exercise of the right that the removal does not involve a breach of the peace and that due care is exercised in effecting the removal.

2. The owner of land attempted to be taken for a public road may enjoin the use of the same for such purpose until his damages for the taking have been ascertained and paid, or provision made for their payment.

3. The same would be true even though the road being established is a section line.

4. A public highway, while being used as such, can only be vacated by the county board in the manner prescribed by law, a proper petition for that purpose being necessary.

5. The records of the proceedings of the county commissioners pertaining to laying out a road, required by law to be kept and which are unambiguous, cannot be modified by parol testimony in a collateral proceeding.

6. An elector residing within 5 miles of a public road has such special interest therein, independent of that which he has in common with the public, as will enable him to maintain a suit to restrain the unlawful closing of such road to public travel.

Edward E. Carr, Crosby & Crosby, North Platte, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

Lucy V. Barrett brought this action in the district court for Lincoln County. Her purpose in bringing the action is to enjoin Vaughn Hand and Byron Otis from tearing down certain fences which she alleges are on her land. Defendants filed an answer wherein they alleged the fence to be in a public road and causing an obstruction therein. They asked that plaintiff be required to remove the fence and that she be enjoined from further obstructing this road. The court found generally for defendants and dismissed plaintiff's petition but denied defendant Hand any affirmative relief. Her motion for new trial having been overruled, plaintiff appealed and defendant Hand has cross-appealed. Since defendant Hand is the only defendant who is a real party in interest, he will be referred to as appellee.

When an action in equity is appealed it is the duty of this court to try the issues de novo and to reach an independent conclusion without reference to the findings of the district court.

In a case wherein the oral evidence in respect to a material issue is so conflicting that it cannot be reconciled this court will consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite.

It should be stated at the outset that the question of a road by prescription is not here involved. Appellant has at all times here material been, and still is, the owner of Section 27, Township 9 North, Range 27 West of the 6th P. M., in Lincoln County, Nebraska. Appellee bases his rights upon the claim that the board of county commissioners of Lincoln County established and opened a public road along the section line between Sections 27 and 34 in Township 9 North, Range 27 West of the 6th P. M., in Lincoln County, and that this road has never been vacated. In order to justify his removing appellant's fence therefrom appellee is required to prove, by a preponderance of the evidence, that the road had been established and opened at the place where he did so. Shaffer v. Stull, 32 Neb. 94, 48 N.W. 882.

Since reference will be made herein to various tracts of land, all of which are in the same township and range in Lincoln County as those tracts already referred to, we will not again repeat that part of the description when referring thereto.

The record shows that in the fall of 1950 the then owner of the northwest quarter of Section 35 constructed a fence along the north line thereof which extended to within 2 feet of the northwest corner of the section. Shortly thereafter appellant rebuilt her fence for some distance along the south and east sides of the southeast quarter of Section 27, commencing the rebuilding at the southeast corner thereof. Her corner post at the southeast corner of Section 27 was and is within 2 feet of the corner. This resulted in the two corner posts, one on the northwest corner of Section 35 and the other on the southeast corner of Section 27, being within about 4 feet of each other and prevented appellee from traveling on the road along the south side of Section 27 and getting onto his farm, he being the owner of the south half of Section 26. Prior thereto appellee and others going to his farm had been able to do so by going over Section 35 or over the southeast corner of Section 27, appellant having permitted her fence at that point to be down. After these corner posts were put in appellee, or others going to his farm, on three different occasions removed the corner post on appellant's land and some of the fence adjacent thereto so he or they could travel this road. On each occasion appellant had the fence put back and, after the third instance, brought this action.

'A traveler actually hindered may personally remove an obstruction in a highway, as may anyone else if specially injured, but it is a condition to the exercise of the right that the removal does not involve a breach of the peace, and that due care is exercised in effecting the removal.' 40 C.J.S., Highways, § 225, p. 222. See, also, Muir v. Kay, 66 Utah 550, 244 P. 901; Shaheen v. Dorsey, 208 Ky. 89, 270 S.W. 452.

As stated in Muir v. Kay, supra [66 Utah 550, 244 P. 906]: 'There are circumstances where at common law a private subject had the right to abate a public nuisance in a public highway, when to do so did not involve a breach of the peace, and where due care was exercised in abating it, such as removing a fence or other structure or obstruction unlawfully placed across the highway, and which obstructed its passage, but, unless the private subject had occasion to make use of the highway or if the obstruction did not impede his progress traveling on the highway, he was required to leave the public injury to be redressed by the public authorities. It was the existence of an emergency which justified interference by the individual, and the right of a private citizen to abate the encroachment or obstruction was limited by the necessity of the case.'

The question then arises, did appellant obstruct a public road or highway?

The statute defines a public road as: 'All roads within this state which have been laid out in pursuance of any law of this state, and which have not been vacated in pursuance of law, * * * .' Section 39-101, R.R.S1943.

Prior to August 16, 1921, there was an established north and south road across the west part of Sections 27 and 34 known as road No. 210. On that date a sufficient petition was filed by electors residing within 5 miles of the proposed road seeking to establish a road east from road No. 210 on the section line between these sections and thence north one-half mile on the section line between Sections 27 and 26. The road was described in the petition as follows: 'Commencing at the northwest corner of the southwest quarter of section 26, thence south on section line to the northwest corner of Section 35, thence west on section line between sections 27 and 34 to canyon, thence in a southwesterly direction about 25 rods around head of canyon, thence in a northwesterly direction back to above described section line, thence west along said line to established road running north and south.' Proper procedures were had in connection with this petition.

Pursuant to notice given appellant, on March 4, 1922, filed objections to the establishment of this road and also a claim for $856 for damages which she claimed she would suffer if the road was established. On November 27, 1922, the county commissioners allowed the road and awarded appellant damages in the sum of $100. On December 11, 1922, appellant appealed to the district court for Lincoln County from the decision of the county board which had reduced her claim for damages to the sum above set forth. In her petition on appeal filed in the district court she set forth that the road had been established on November 27, 1922, and asked for damages in the sum of $856 which she claimed she suffered by reason thereof.

There are at least three grounds upon which it can be held the road was established: First, because all the statutory requirements for the establishment of a road were complied with; second, because no question could be raised by appellant as to the regularity of the proceedings of the county board in establishing the road after she filed her claim for damages; and third, because no petition is necessary for a county board to obtain jurisdiction to take such action when opening a road on a section line.

As to the second ground, see Lionberger v. Pelton, 62 Neb. 252, 86 N.W. 1067; Hoye v. Diehls, 78 Neb. 77, 110 N.W. 714; Davis v. Boone County, 28 Neb. 837, 45 N.W. 249. As stated in Lionberger v. Pelton, supra: 'No question is raised as to the regularity of the proceedings of the board in establishing the road, nor could any such objections be raised by the plaintiff, in view of the fact he filed his claim for damages.'

As to the third ground, a county board may do so whenever, in its judgment, the public good requires it.

Section 39-122, R.R.S.1943, provides: 'The section lines are hereby declared to be public roads in each county in the state, and the county board may, whenever the public good board may, whenever the without any preliminary survey and cause them to be worked in the same manner as other public roads; Provided, any damages claimed by reason of any such road...