Bishop v. Hawley

• Decision Date: 11 August 1925
• Docket Number: 1228
• Citation: 33 Wyo. 271,238 P. 284
• Parties: BISHOP v. HAWLEY [*]
• Court: Wyoming Supreme Court

238 P. 284

33 Wyo. 271

BISHOP v. HAWLEY ^[*]

No. 1228

Supreme Court of Wyoming

August 11, 1925

APPEAL from District Court, Natrona County; ROBERT R. ROSE, Judge.

Action by M. L. Bishop against Robt. D. Hawley for the abatement of a fence obstructing an alleged highway. From a judgment granting less than the relief prayed, plaintiff appeals.

Affirmed.

Marvin L. Bishop, Jr., John H. Casey and F. M. Perkins for appellant.

The question involved is whether Sec. 2477 U. S. R. S., (U.S.C S. Sec. 4919) permits a dedication by user of a road across the public domain of a greater width than 100 ft.; we assume that the term, "public," as used in the Act includes owners of live stock; the authorities have construed this Act of Congress as one permitting a degree of flexibility suitable to the needs of the using public; Yakima County v. Conrad (Wash.) 66 P. 411; Wallowa County v. Wade, 72 P. 794; McRose v Battyer, 22 P. 393; Hamp v. Co., 172 P. 869; a width of 100 ft. would not meet the requirements of the public using the road for trailing stock.

W. H Patten for respondent.

The establishment of a driveway for stock is a statutory remedy, and not a common law right; 2987 C. S. the claim for damages is remote; State v. Buckner, 98 Am. Dec. 83; Chap. 100, Laws 1921 limited the establishment of highways across the public domain, at any rate, until the County Commissioners have complied with the Act; see also 29 C. J. 627; Van Buskirk v. Bond, 96 P. 1103; only a well defined line of travel can be accepted by the public under the Act of Congress; 29 C. J. 373; Bayard v. Oil Co., 63 P. 614; People v. Alexander, 92 P. 202; Vol. 1. Elliott on Roads, page 225; the width cannot be broader than the use; the statutory or used width in the neighborhood is often adopted; Vol. 1. Elliott, page 222; 2987 C. S. Meservey v. Gulliford, 93 P. 780; 37 Cyc. 40; Whiteside v. Summers, 90 P. 674; the term, "public," as used in the Act means public generally and not a specific class like teachers, lawyers or trappers of the community; sheep and cattle men are a specific class; under the laws of Wyoming the width of highways is fixed at not less than 60 ft. nor more than 100 ft.; roads of this character should be confined to the statutory width.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

M. L. Bishop, plaintiff and appellant, claiming that R. D. Hawley, defendant and respondent, had constructed and maintained a fence across a highway, brought this action for damages sustained by the obstruction of the highway, to abate the fence as a nuisance, and to enjoin the defendant from obstructing the highway in the future. The defendant was the owner of a homestead entered and patented under the public land laws. The fence enclosed the homestead across which the plaintiff claimed the highway had been established by use by the public before the entry of the homestead. The plaintiff alleged that the highway across defendant's lands was 500 feet in width. The defendant denied the existence of the highway. The case was tried without a jury. The court found the issues in favor of the plaintiff, but held that the highway was only 100 feet wide instead of 500 feet as claimed by the plaintiff. The plaintiff appeals, alleging that upon the facts found the court's decision as to the width of the highway was error. That is the only question presented here.

The evidence has not been brought up, and there is nothing in the record to show that either party requested the court to state its conclusions of fact separately from its conclusions of law. The district court's decision, however, is evidenced by a "decree," which contains statements of conclusions of fact and law, but without any recitation to show that it was intended to state them separately. The following quotation from the decree contains all the conclusions that seem to have any bearing on the question of the width of the highway:

"That by Act of Congress of the United States, being known as Section 2477 Revised Statutes of the United States, U.S.C.S. 1916, Section 4919, the United States granted to the public the right to establish highways over, upon and across the unappropriated public domain;

"That the public accepted of said grant by user and established over and upon the unappropriated public lands of the United States, in Natrona County, Wyoming, a trail or highway, crossing the lands now owned by the defendant;

"That the said trail or highway was so established and used by the public generally, including sheep and cattle drovers, for their flocks and herds, as a highway, and was well known as such highway in the year A. D. 1885, and was so used as such highway, for a long time prior to said date, and continuously up to the present time, except when and where its use has been interrupted by fences of the defendant;

* * * *

"That the stockmen and sheep-growers, generally, were a part of the public of Natrona County, Wyoming, at all times mentioned in the petition herein, and many of them used said highway continuously where it crossed and crosses over and upon the lands now owned by the defendant for more than thirty years before the defendant located on said lands, and while said lands were a part of the unappropriated public domain; and the said stockmen and sheepgrowers, in their said use of the said highway, in driving their sheep and cattle along said highway, customarily occupied on either side of the center of said highway a width of two hundred and fifty feet and frequently an eighth of a mile;

"That for the purpose of trailing sheep through and in the County of Natrona and State of Wyoming a driveway of five hundred feet in width is and was at all times herein necessary for the most convenient and advantageous trailing of sheep in bands of such numbers as are usually maintained in said section of the State of Wyoming;

* * * *

"That the defendant herein took his homestead rights and made his entry on the lands now owned by him, and which are crossed by the said highway, subject to the right-of-way of the said highway, and subject to the said highway so established and acquired by the public generally and by the plaintiff herein, by user, under the Federal Grant mentioned; but the court finds as a matter of law, that the width of the said highway so acquired must only be a reasonable width necessary for the use of the public generally and such width as was in contemplation by the Federal Legislature at the time of the passage of the Act of 1866, referred to, and was and is of no greater width than one hundred feet, notwithstanding its use as aforesaid by cattle and sheep drovers and owners to a much greater width."

In quoting from the decree we have italicized the parts that are most important on the point presented by this appeal.

The act of Congress referred to in the decree (Sec. 2477 U.S. Rev. Stat. passed in 1866) provides that, --"The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted." This act was considered in Hatch Bros. Co. v. Black, 25 Wyo. 109, 165 P. 518, and the same case on petition for rehearing, 25 Wyo. 416, 171 P. 267, where it was held that a right of way granted by this law may be accepted by the public by continued use of a road as a highway for such a length of time and under such circumstances as clearly to indicate an intention to accept the grant. As pointed out in that case, it is not a question of establishment of a highway by prescription or adverse user, but by acceptance of a grant. The grant by the federal government is considered a "dedication" which becomes effective on its acceptance, that is, when the highway is "constructed" or established by user by the public.

In 1919, after the decision of Hatch Bros. Co. v. Black, the legislature passed an act (c. 112, Laws 1919, Sec. 2977, C. S. 1920) making it the duty of the Boards of County Commissioners, prior to January 1, 1922, to determine what roads, not theretofore officially established and recorded, "are necessary or important for the public use as permanent roads, and to cause such roads to be recorded" etc., and declaring that "no other roads shall be highways unless and until lawfully established as such by official authority." By an amendment in 1921 the time for action by the Boards of County Commissioners was extended to January 1, 1924. Ch. 100, Laws 1921. This act is called to our attention by the brief of counsel for defendant, but we think we need not consider it for the purpose of our decision in this case. The defendant has not appealed, and we therefore deem it unnecessary to inquire whether the findings are sufficiently conclusive of the issue as to the existence of the highway, or would have supported a finding that there was no highway. The case, as it comes to us, requires an examination of the findings of the trial court for the purpose only of determining whether the facts found fail to support the decision that the highway through defendant's lands is of the width of one hundred feet.

Hatch Bros. Co. v. Black presented no question as to the width of a highway established under the congressional grant by public travel and use, and we find the point discussed in no...