Board of County Commissioners of Sheridan County v. Patrick
| Decision Date | 14 March 1910 |
| Docket Number | 610 |
| Citation | 18 Wyo. 130,104 P. 531 |
| Parties | BOARD OF COUNTY COMMISSIONERS OF SHERIDAN COUNTY v. PATRICK |
| Court | Wyoming Supreme Court |
Original Opinion of November 3, 1909, Reported at: 18 Wyo. 130.
Application for rehearing denied.
Charles A. Kutcher, for plaintiff in error.
(On petition for rehearing.) Although the matter involved in this case is unimportant so far as this particular road is concerned, the decision is extremely important in its effect upon other county roads. The court will doubtless take judicial notice of the fact that the early road records were imperfectly kept, and that many county roads must be sustained, if at all, by the doctrine of prescription. We again contend that the plat and field notes cannot be considered as competent evidence of the legal establishment of any road along the section line. The only evidence, on the other hand, of any proceeding by the County Board is the testimony of Curtis to the effect that he, as one of the viewers, located the road in 1885 exactly where it was traveled until changed by the defendant in error. Even if the plat and field notes should be considered, the line actually run on the ground would, under the familiar rule as to surveys and boundaries, control in this case. (5 Cyc. 915 note 85.) Moreover, the plat describes a road in range 86 which is six miles west of the road in question. The establishment of a public road can be proved only by the records of the proceedings had by the board relative thereto. There being no record of the proceedings of the Board establishing a road along the section line, the situation presented is that either the county had a road by prescription, where it was laid out in 1885, or it had no road whatever. We think that the County Board assumed control over the road for the statutory period necessary to establish a road by prescription. The Board treated the road as a county road and kept it open and repaired. In the nature of things, it could not do more. Even under the rule of adverse possession, if the occupant shows that he treated the tract as his own and used it for the purposes for which it was reasonably adapted, his possession will be deemed adverse and under a claim of right. (Langtry v. Parker, 55 N.W 962; Carpenter v. Coles, 77 N.W. 424.) Suppose the road in question had required no repairs. Would it be held under such a state of facts, even though it had been traveled for twenty years as a public road, that no rights by prescription could possibly attach, merely because the assumption of control and jurisdiction was not evidenced by repairs? Many roads exist which do not require repairs over their entire length. It is not necessary that the road be repaired or worked throughout its entire length. (Gross v. McNutt, 38 P. 935.) The road in the case at bar did not run across land altogether vacant upon prairie land. It was completely fenced on one side and followed a well defined track along the fence. This case, therefore, does not come under the rule applied by the court. (O'Connell v Chicago, &c., 56 N.E. 355; Hartley v. Vermillion, 70 P. 273.) Instead of the presumption that the use of the road was permissive, the presumption ought to be that it was adverse upon the facts disclosed in the case. Where there has been actual, continuous and exclusive possession for the statutory period, unexplained, the presumption is raised that the possession is hostile.
Patrick's attempt to obtain permission from the Board to change his fence was an acknowledgment that the use of his land was not permissive, but adverse. The witness Curtis surely intended to say that his work was performed under the direction of the supervisors of Johnson County, although he said "Sheridan." His mention of the wrong county was overlooked upon the trial by both the court and counsel, or it would have been corrected, and it seems that his testimony ought not to be disregarded because of the inadvertence of his statement. However, it is immaterial, for it makes no difference whether the witness thought the county was Sheridan or Johnson, so long as he actually laid out and worked the road by the direction of the constituted authorities. It is true that without the testimony of Mr. Curtis no evidence exists of any repairs more than ten years prior to the time Patrick interrupted travel on the road.
ON PETITION FOR REHEARING.
This case was brought to enjoin the county from interfering with a fence built by plaintiff across a traveled road claimed by the county to be a public highway. For the reasons stated in the former opinion, the judgment in favor of the plaintiff was affirmed. (104 P. 531.) A petition for rehearing has been filed on behalf of the plaintiff in error, the Board of County Commissioners. It seems to be supposed that the principle upon which the case was decided will tend to confusion in the matter of public roads, and interfere with other roads in a similar situation, and it is stated in the brief in support of the petition for rehearing that this case is unimportant so far as it affects the particular road in controversy, but that it was brought or allowed to be brought as a test case to have settled the rule in this State concerning the existence of a public highway by prescription. We do not think that the serious unfortunate consequences anticipated by counsel will necessarily result from the decision heretofore announced. If such results are possible, it is a matter easily remedied by the Legislature if deemed proper. We must declare the law as it stands, leaving the Legislature to make such changes as conditions may seem to require. The rule that where land is vacant and unoccupied and remains free to public use and travel until circumstances induce the owners to inclose it, the mere travel across it by the public without objection from the owner does not enable the public to acquire a public road over the same, but that such use will be regarded as merely permissive and not adverse, is a rule which, as said in a Washington case cited in the former opinion, seems to be well settled. (Watson v. Board, &c., 38 Wash. 662, 80 P. 201.) It is unnecessary to rehearse the reasons upon which the rule is founded.
We think it is a fact that in the earlier days of the settlement of this particular section of country it was not unusual for fences to be constructed without strict regard to boundary lines or corners, and that, in addition to public lands, it was not uncommon for land which had passed into private ownership to remain open and uninclosed. Public travel according to convenience across such uninclosed lands, was unobstructed. There has never existed in this State a statute to the effect that the mere use of a road by the public may ripen into a title or right thereto by prescription, but in some states there is such a statute, which is held to qualify the common law rule. (State v. Auchard (Mont.), 22 Mont. 14, 55 P. 361; Township of Madison v. Gallagher, 159 Ill. 105, 42 N.E. 316.) In the case last cited it was said: "Where the statute expressly says that use of the road as a highway by the public for a certain number of years makes it a public highway, we cannot see why such use is not evidence of as high a character as are acts of recognition by the town authorities." And again: "Under such a statute the continued and uninterrupted use * * * for the statutory period must, in the absence of proof to the contrary, be presumed to have been under a claim of right." The same liberality has not been shown by our Legislature in favor of a right by prescription to a public highway. Until 1877, the only statute respecting the matter was one enacted in 1869 by the first territorial legislature, which provided as follows: "All roads within this Territory shall be considered public highways, which have been, or may hereafter be, declared Territorial roads by act of the Legislative Assembly, or which have been or may be, declared public roads by the Board of County Commissioners of any county, within such county, or which have been, or shall hereafter be, used and traveled by the public, so that the same would, according to the course of the common law, be deemed public highways." (Comp. L. 1876, Ch. 102, Sec. 1.)
In 1877 an act was passed providing: "That the Board of County Commissioners of the several counties of the Territory of Wyoming shall have power to adopt, and by resolution entered of record, appropriate to county and public uses any road or route publicly traveled, within their respective counties whether originally opened and laid out by them or not, and any road so adopted and appropriated to public purposes shall be and is hereby declared a public or county road to all intents and purposes, the same as if originally opened or laid out by them and subject to the same laws and regulations in all respects." Section 2 of that act required a record to be kept of all such proceedings, with a description of the road, for the information of the public, and to be open to public inspection. (Laws 1877, p. 135.) That act continued in force until repealed by an act approved March 12, 1886, whereby it was provided that all county roads shall be under the supervision of the Board of County Commissioners of the county wherein the road is located, and "no county road shall be hereafter established, nor any such road be altered...
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