Dingwall v. Board of Com'rs of Weld County

• Decision Date: 07 March 1894
• Citation: 19 Colo. 415,36 P. 148
• Court: Colorado Supreme Court
• Parties: DINGWALL v. BOARD OF COM'RS OF WELD COUNTY.

36 P. 148

19 Colo. 415

DINGWALL v. BOARD OF COM'RS OF WELD COUNTY.

Supreme Court of Colorado

March 7, 1894

Appeal from district court, Weld county.

Action by John G. Dingwall to restrain the board of county commissioners of Weld county from opening or maintaining a road as a public highway through the lands of plaintiff. A temporary injunction was granted. On final hearing, upon the pleadings and evidence, the finding of the court was in favor of defendant, and judgment was rendered, dissolving the injunction and dismissing the action. Plaintiff appeals. Affirmed.

Syllabus by the Court

1. Where the county authorities claim the right to maintain a road as a public highway through private lands, and the landowner claims that the road is not a public highway, or that, if it ever existed as such, it has been vacated or abandoned, the burden of proof is upon the county to show the existence and location of the highway as claimed; but, the existence and location being established, the burden is upon the landowner to show that the same has been vacated or abandoned.

2. When a cause is tried upon oral testimony, and the conclusions of fact by the trial court are fairly sustained by the evidence the appellate court will not reverse the judgment upon an assignment of error which goes merely to the sufficiency of the evidence.

Joseph N. Baxter, for appellant.

J. W McCreery and H. N. Haynes, for appellee.

ELLIOTT J.

The only assignment of error is to the effect that the court erred in giving judgment for the defendant below, instead of the plaintiff. In behalf of defendant (the board of commissioners) it is claimed that the road sought to be opened and maintained is a public highway or territorial road running through plaintiff's land, and that the same is recognized and declared to be such by statute. The following from the Revised Statutes of 1868 is cited: 'Section 1. The most usually travelled roads between the following-named places are hereby declared to be territorial roads, to-wit: * * * From Denver city, down the Platte river, by way of St. Vrain's, to Julesburg.' See chapter on roads and highways, p. 563. That the roads mentioned in said statute thereby became and were public highways is not questioned in this action. But it is contended by plaintiff that, if the territorial road from Denver to Julesburg ever ran through his premises, it had been vacated or abandoned before the bringing...