City of Raton v. Pollard

• Decision Date: 28 December 1920
• Docket Number: 5497.
• Citation: 270 F. 5
• Parties: CITY OF RATON v. POLLARD.
• Court: U.S. Court of Appeals — Eighth Circuit

270 F. 5

CITY OF RATON v. POLLARD.

No. 5497.

United States Court of Appeals, Eighth Circuit.

December 28, 1920

Judgment was recovered against the city of Raton, N.M., for personal injuries sustained by defendant in error. His claim was based upon alleged negligence of the city in failing to keep a bridge in one of its public streets and the approaches to it in proper repair. The questions in the case all relate to the existence of a public street at the place of the accident. It was within the city limits, but not upon any street that had been platted or established by any formal act of the city. The tracks of the Atchison, Topeka & Santa Fe Railway Company, hereafter called railway company, run through the city in a general course from southeast to northwest. The main part of the city lies to the west and south of the railway. North Third street is one of the principal streets of the city, and as platted extends northerly to the railway right of way; but for more than 20 years there has been a well-defined roadway crossing the tracks in continuation of this street. The right of way is of the width of 200 feet and there are double tracks along its center. Going north on Third street, after crossing the railway tracks, the traveled roadway merges into a road which lies between the railway tracks and the northeast line of the right of way. This road runs parallel to the tracks, and keeps within the right of way for at least the distance of a city block to the southeast of its junction with the Third street crossing and for a little longer distance to the northwest. It then emerges from the right of way and continues to run northwesterly along the side of the right of way, leading to a dairy a mile distant.

The bridge where the accident occurred is about 300 feet to the northwest of the place where the crossing over the tracks at Third street joins this road on the right of way, and the bridge and roadway are within the right of way at this point. The railway from Raton to the north and west follows a narrow valley between the mountains. It holds its right of way along this route by virtue of a deed to its predecessor from the Maxwell Land Grant Company. The railroad was constructed about 1879. Before that time there had existed a highway known as a part of the Santa Fe trail, running from Colorado to and beyond where Raton is now situated. This road had existed since about 1846, and its general course was not far from where the railroad was afterwards built. After the railroad was constructed, the highway fell into disuse except the portion near where Raton is situated. Raton was platted in 1882, and incorporated as a town in 1891. It is not clear whether the road ran and the bridge was situated prior to 1891, at the same place where they were at the time of the accident; but it is undisputed that since about 1891 their location has not been changed. A small coal mine, a rock quarry, and a dairy farm were located north and east of Raton, and for more than 20 years before the accident this road along the railroad right of way had been generally and continuously traveled, not only by those who hauled the products of these industries, but by the public generally. It was not shown that the city had constructed or repaired the bridge or the road, or that its officers had recognized it as a public street belonging to the city. It was not shown that the railway company had ever given permission to use its right of way for the purpose of this road, but that use had been well-defined and obvious for more than 20 years. After testimony showing these facts had been heard, the court left to the jury the question whether a public street existed at the scene of the accident, instructing them that the liability of the city depended upon the existence of a public highway at this place by prescription, and that the highway could not be found to exist unless it was shown that it had been traveled and used by the public as a highway, and had as a matter of right been claimed as such for 10 years continuously, uninterruptedly, adversely, and not by mere permission of the owner. The plaintiff had a verdict, and judgment was entered upon the verdict.

A. C. Voorhees, of Raton, N.M. (H. L. Bickley, M. (H. L. Bickley, of Raton, N.M., on the brief), for plaintiff in error.

H. A. Kiker, of Raton, N.M. (Elmer E. Studley, of Long Island City, N.Y., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge (after stating the facts as above).

The plaintiff in error claims error because the court refused a peremptory instruction in favor of the city. It claims that the evidence was not sufficient to show a public street at this place, because it did not show that the city had ever accepted it by some affirmative act of its officers recognizing it as a street of the city. It then maintains that such an acceptance is necessary under the statutes of New Mexico. It is unnecessary to set out the statutes. They clothe the city of Raton with the usual broad powers of municipal corporations to establish, improve, or vacate streets, and impose a duty to keep the streets open and in repair. Some restrictions are imposed upon the power of the city to condemn property for streets, and other restrictions are imposed upon the creation of streets in platted additions; but no statutory restrictions are found which limit the creation of a street by prescriptive use or which require any formal acceptance of it by official action. Section 3365, Statutes of New Mexico, provides: 'No person or persons, nor their children or heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, against any one having adverse possession of the same continuously in good faith, under color of title, but within ten years next after his, her or their right to commence, have or maintain such suit shall have come, fallen or accrued, and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments so held, shall be commenced within ten years next after the cause of action therefor has accrued.'

Plaintiff in error does not contend that it is not the general rule applicable in New Mexico, that a street or highway may be established by prescriptive use, where the general public under a claim of right and not by mere permission of the owner, have used some well-defined way without interruption, but contends that it must also be shown that the municipality accepted or recognized the highway by some act of its officers. Although there is some division in the cases, the better rule and the one established by the weight of authority is that the continuous and adverse use by the public for the...