O'Dea v. State

• Decision Date: 20 August 1884
• Citation: 20 N.W. 299,16 Neb. 241
• Parties: JOHN O'DEA, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 299

16 Neb. 241

JOHN O'DEA, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 20, 1884

ERROR to the district court for Washington county. On trial below before NEVILLE, J., the following instructions were given, to which the defendant excepted:

"2d. Before you can convict you must be satisfied from the evidence beyond a reasonable doubt of the truth of the following propositions:

"1. That the bridge in question was a public bridge.

"2. That the road upon which it was placed was a public road at the time of the alleged destruction.

"3. That the said road was properly established by the proper legal authorities, or was a public road by user, and was such public road at the time of the alleged destruction.

"4. That the defendant John O'Dea willfully and unlawfully and maliciously did cut and destroy the said bridge with intent to injure the same.

"3d. If you shall be satisfied beyond a reasonable doubt that the portion of the road on which the bridge was placed had been totally abandoned as a public road for a period of five years next prior to the establishing and placing thereon the bridge in question, then it ceased to be a public road and no conviction can be had.

"4th. If the portion of the road upon which the said bridge alleged to have been destroyed was placed, had not been totally abandoned as a road for a period of five years next prior to the destruction charged against the defendant, then you may find that said part of the road was a public road, provided you further find that the said road was in the original instance properly established, or has been in public use for a period of ten years next prior to the alleged destruction of said bridge.

"5th. You are instructed that the county commissioners had no authority to vacate the road in question unless there was first filed in the proper office the petition required by law properly published or posted, and any order they might make without first filing the petition and the publication or posting of the required notice would not vacate said road.

"6th. You may, in endeavoring to learn whether or not the defendant knew the bridge was a public one and located upon a properly established public road, that the defendant received damages from the county of Washington for the land taken to constitute the part of the road upon which the bridge was located.

"7th. You are instructed that a public road may be properly established by user, and if the county attempted to establish the road in question and their proceedings were void, yet if the said road or the part thereof upon which the bridge was located was used as a public road, with the knowledge of the defendant for the term of ten years just prior to the alleged destruction of said bridge, then the said road was properly established."

AFFIRMED.

Ballard & Walton, for plaintiff in error, cited: Robinson v Mathwick, 5 Neb. 252. State, ex rel. Sims, v. Otoe County, 6 Id., 129. Doody v. Vaughn, 7 Id., 28. State v. Tucker, 36 Iowa 485. State v Green, 41 Iowa 693. Plaintiff in error having been deceived and misled by the county authorities he is not now estopped from asserting the truth, and saying there is no road there. Bigelow on Estoppel, part 3, 387. Douglas v Scott, 5 Ohio 198. Price v. Johnston, 1 O. S., 390. Clark v. Coolidge, 8 Kan. 189. Ayres v. Probaser, 14 Kan. 190. Lucas v. Hart, 5 Iowa 415.

Isaac Powers, Jr., Attorney General, for the State, cited: Reese v. Chicago, 38 Ill. 322. In re Wells County Road, 7 Ohio St. 16.

OPINION

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 prosecutes 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 fifty dollars. This sum was allowed him by the county board, and from this allowance he appealed to the district court. The cause was tried in that court, and a judgment for one hundred and eighty-five dollars 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 these 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 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. In the matter of the Wells County Road, 7 Ohio St. 16. Rees v. Chicago, 38 Ill. 322.

It is next 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." Comp. Stat., ch. 78.

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 testifies that he has known the road thirteen years. A part of his testimony is as follows:

Q. State whether or not this is used as a public thoroughfare, and has been during all these years?

A. It is used for travel all the time, that is from the Rockport road. Mr. O'Dea and Mr. John Kelley 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...