O'Ddea v. State

• Citation: 16 Neb. 241,20 N.W. 299
• Parties: O'DEA v. STATE.
• Decision Date: 20 August 1884
• Court: Supreme Court of Nebraska

16 Neb. 241

20 N.W. 299

O'DEA

v.STATE.

Supreme Court of Nebraska.

Filed August 20, 1884.

Error from Washington county.

Ballard & Walton, for plaintiff.

The Attorney General, for defendant.

REESE, J.

The plaintiff in error was indicted by the grand jury of Washington county for maliciously cutting down and destroying a public bridge in said county. From a judgment of conviction he presents error in this court.

On the trial the state introduced certain documentary evidence, consisting of the proceedings in the matter of the location of the highway upon which the bridge in question was erected. It is claimed by plaintiff in error that the court erred in admitting these records, as they do not prove the legal establishment of the road. The records show, among other things, that the plaintiff in error, being the owner of the land on one side of the road sought to be established, filed his claim for damages, a commission was appointed to assess the same, and a report was made allowing him $50. This sum was allowed him by the county board, and from this allowance he appealed to the district court. The cause was tried in the court, and a judgment of $155 was rendered in his favor, which was paid, and full satisfaction thereof was entered. We think the evidence was competent, and there was no error in its admission.

It is claimed that the board of county commissioners had no jurisdiction of the subject-matter, and that their acts were void for the reason that no notice was given of the proceedings to establish the road, as required by law. We fail to observe any such irregularities in the proceedings as would render them void, and also fail to find that “no notice had been given,” as claimed by plaintiff in error. But the record shows beyond a question that he did demand and receive pay for the land taken by the road, as well as his damages growing out of its location. It seems to us that he cannot now be heard to deny the validity of the proceedings in its establishment. He cannot be heard to say there is a road, and because of the road he will demand and receive $185; and, after receiving the money, say there is no road, and because there is none, he will cut down the bridges placed thereon at public expense. See In re Wells County Road, 7 Ohio St. 16;Reese v. Chicago, 38 Ill. 322.

It is now claimed that “if this so-called road was ever legally established, it was by the act of 1879 vacated; and this was long before the bridge in question was built.” That part of the act of 1879 referred to is as follows:

“Sec. 3. All roads within this state which have been laid out in pursuance of any law of this state, or of the territory of Nebraska, and which have not been vacated in pursuance of law, are hereby declared to be public roads: provided, that all roads that have not been used within five years shall be deemed vacated.”

It will be observed that the most that can be claimed for this section is that roads that have not been used within five years shall be deemed to be vacated or abandoned by the public. It will not do to say that if any part of a road has not been used the whole road “shall be deemed vacated.” Neither will it do to say that if for five years the line of travel is deflected from a part or small portion of a road by reason of some local difficulty, that the unused portion “shall be deemed vacated.” In order to vacate a road by non-user, there must be a clear and entire abandonment of the road by the public for the statutory period. In the language of the statute, in order to its vacation, it must “have not been used within five years.” Officers and courts cannot inquire into the extent of the use, whether used much or little by the public. If used at all, the road will not “be deemed vacated.”

Some of the witnesses testified on the trial that the road had not been used for more than five years. Others testified that it had been used within that time. One witness testified that he has known the road 13 years. A part of his testimony is as follows: “ Question. State whether or not this is used as a public thoroughfare, and has been during all these years. Answer. It is used for travel all the time; that, is from the Rockport road. Mr. O'Dea and Mr. John Kelly uses that end. Sometimes, when one of us goes to see one of them, we use it. On the other end Mr. Neale has used it, and I have used it some. There is a swamp about one hundred yards long there. Most of them don't go that road. Both ends of that road have been used about thirteen years. The new bridge was at the corner of sections thirty and twenty-nine, and about fifteen rods south of the corner-stone. Sometime ago there was a little bridge there, but that big gulch washed through. Q. In the place where the new one is now? A. Pretty near the same place; it...