Eble v. State

• Decision Date: 11 January 1908
• Docket Number: 15,350
• Parties: JOSEPH EBLE v. THE STATE OF KANSAS, ex rel. Lee Bond, as County Attorney, etc
• Court: Kansas Supreme Court

93 P. 803

77 Kan. 179

JOSEPH EBLE v. THE STATE OF KANSAS, ex rel. Lee Bond, as County Attorney, etc

No. 15,350

Supreme Court of Kansas

January 11, 1908

Decided January, 1908.

Error from Leavenworth district court; JAMES H. GILLPATRICK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS--Enjoining Obstruction--Authority of County Attorney. The county attorney has power to bring a suit in the name of the state to enjoin obstructions to travel upon a public highway without authority from the board of county commissioners and notwithstanding the disinclination or refusal of the local highway officers to move in the matter.

2. HIGHWAYS--Proceedings to Open--Validity of Bond. A bond given at the institution of proceedings to open a road under the law of 1868 is not void because signed by one petitioner, as principal, and by a single surety, who is also a petitioner.

3. HIGHWAYS--Discontinuance of Use of Opened Road--Limitation of Time to Open. The statute vacating roads and barring authority for opening roads which have remained unopened for seven years after orders have been made or authority has been granted for opening them does not apply to a discontinuance of use after a road has been opened.

4. HIGHWAYS--Adverse Possession--Continuing Nuisance--Acquiescence--Abatement . A private individual cannot obtain title to a public highway by adverse possession. Lapse of time will not bar the remedies of the state against encroachments upon highway. An obstruction to the public use of a highway is continuing nuisance, and no equities in favor of a person committing such a nuisance can be founded upon the acquiescence of the highway or other officials or upon their laches in taking steps to punish or abate it.

5. PRACTICE, SUPREME COURT--Immaterial Error--Findings of Fact and Conclusions of Law. It must appear that the denial of a request upon the trial court to state findings of fact and conclusions of law separately has prejudiced the substantial rights of the party making the request before a judgment will be reversed because of such denial.

John T O'Keefe, for plaintiff in error.

Fred S. Jackson, attorney-general, Lee Bond, county attorney, F. B. Dawes, and C. P. Rutherford, for defendant in error.

OPINION

BURCH, J.:

The state of Kansas, on the relation of a county attorney, brought suit to enjoin the defendant from the commission of a nuisance by the obstruction of a public highway. The suit was instituted without consulting the board of county commissioners, and without authority obtained from them. Private parties applied to the county attorney for the relief asked and indemnified the state against costs. Private counsel prepared the papers and conducted the trial of the case, but the county attorney signed and verified the petition, appeared at the trial, and participated in the conduct of the proceedings.

On May 31, 1906, at the conclusion of the trial, the court announced orally what its judgment would be. The defendant then proposed to dedicate and open a road through his premises, satisfactory to all parties, in lieu of the highway obstructed, and the court, for the purpose of giving him an opportunity to do so, stated that it would take the case under advisement. On June 19, 1906, a regular motion day under the rules of the court, the defendant for the first time made a request for separate findings of fact and conclusions of law. The request was denied, as coming too late, the court calling attention to the fact that the judgment had already been indicated and that the proceedings were kept open merely on the proposal of the defendant referred to. On the next motion day, a week later, the request for separate findings of fact and conclusions of law was renewed and denied. On July 7 the court made findings and rendered judgment, as follow:

"Now on this 7th day of July, 1906, this case came on for further consideration, and the court, having heretofore heard the evidence and the arguments of counsel, and being well advised in the premises, finds that the road described in the petition in this case and known as the 'Lynn road' was duly and legally established and opened for travel in 1871, and ever since such time has been a public highway; and the court further finds that for more than fifteen years prior to the commencement of this action the defendant maintained fences, cattle sheds and other obstructions in and across said public highway, and continued to maintain said obstructions up to the trial of this case.

"It is therefore now here by the court considered, ordered and adjudged that said defendant, Joseph Eble, is guilty of maintaining a public nuisance.

"It is further considered, ordered and adjudged and commanded that said defendant, Joseph Eble, abate said nuisance within sixty days from this date by removing all of said obstructions, except his barn, from said highway, and he is hereby perpetually enjoined from obstructing the same or any part thereof in any manner whatsoever except as the same is now obstructed by said barn."

The defendant prosecutes error.

It is claimed the county attorney had no authority to bring the suit. The statutes making it the duty of the township trustee to prosecute violations of the road law and giving him authority to remove obstructions, and the statutes prescribing the powers and duties of boards of highway commissioners and road-overseers, are cited. The decisions of this court to the effect that the board of county commissioners has control of the business and financial affairs of the county, and has charge of all litigation in which the interests of the county are involved, are also cited. These statutes and decisions do not govern the controversy. The state at large has an interest in keeping the highways in every county free from obstruction to public travel, no matter what the attitude of the local authorities upon the question may be. The wilful obstruction of a highway is a public offense which the state may prosecute, even though the township trustee be disinclined or refuse to do so. Such an obstruction may be enjoined and abated as a common nuisance by the state, even though the board of county commissioners should be opposed to the suit; and the legislature has made it the duty of the county attorney to prosecute, on behalf of the people, all suits, civil or criminal, arising under the laws of the state, in which the state is a party or is interested. (Gen. Stat. 1901, § 1777.)

It is claimed the county attorney delegated the authority of his office to the private counsel who did the work in the case. Manifestly this is not true. It was the county attorney's lawsuit all the time, and it is not very...