Eldridge v. Collins

• Decision Date: 22 November 1905
• Docket Number: 13,992
• Citation: 105 N.W. 1085,75 Neb. 65
• Parties: NORMAN J. ELDRIDGE ET AL., APPELLEES, v. ANDREW J. COLLINS, APPELLANT
• Court: Nebraska Supreme Court

105 N.W. 1085

75 Neb. 65

NORMAN J. ELDRIDGE ET AL., APPELLEES, v. ANDREW J. COLLINS, APPELLANT

No. 13,992

Supreme Court of Nebraska

November 22, 1905

APPEAL from the district court for Hall county: JAMES N. PAUL JUDGE. Affirmed.

AFFIRMED.

Charles G. Ryan, for appellant.

W. H Thompson, contra.

ALBERT C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

This suit was brought by the plaintiffs, in their own behalf and in behalf of others similarly situated, to restrain the defendant from obstructing an alleged public road. The substance of the complaint is that the plaintiffs are the owners of the northeast quarter of section 14, township 10, in Hall county, and that the defendant is the owner of the southwest quarter and the west half of the northwest quarter of the same section; that there is a public highway 26 feet wide, along the section line between sections 13, 14 and 15 in said county, and extending in a westerly direction across the state; and, that the defendant threatens and intends unlawfully to obstruct the said highway by building a fence along the west side of his land, in section 14, to the great and irreparable injury of the plaintiffs. The defendant answered, denying the existence of a public road through or over any portion of his land in section 14, and averring that the alleged road or way leading through said section and over and upon his land was, and for many years had been, a mere private way running east and west through the middle of said section, with no established width or location. The district court found that there was a public highway, 26 feet wide, running east and west through the middle of section 14, and granted an injunction restraining the defendant from obstructing it. The defendant appeals.

Some 20 witnesses were examined, and their evidence covers more than 200 pages of the bill of exceptions. There is some conflict in the testimony, but it conclusively appears that as early as 1859, seven years before the section was surveyed by the government, there was a well-defined road, in common use by the public, extending east and west through section 14, on or near the half section line; that in 1867 the county surveyor of Hall county surveyed and platted this road, and that a report of his doings in the premises, including a plat of the road, was filed with the county clerk and approved by the county board. It further appears that in 1872 or 1873 the road overseer, acting under the authority of the county board, constructed a culvert and made other improvements on the road, and further improvements thereon were made by such officer a year or two later.

The principal controversy is whether the line of that road coincides with the line of the road which the plaintiffs now claim is a highway. The plat, made and filed by the county surveyor in 1867, shows a substantial variance especially as to that portion extending over and along the land now owned by the defendant. But, in our opinion, the evidence of early settlers and those acquainted with the early history and condition of the locality ought to prevail as against this plat. In 1862 the settlers procured a private survey to be made of section 14. Some of these men testify that when the government survey was made, four years later, the lines and corners of the latter survey coincided with those established by the private survey, and that the road then extended east and west on the half section line. By the evidence of the early settlers it is also shown that about the year 1865 the parties then occupying the land now owned by the defendant broke portions thereof, leaving about 13 feet on each side of the half section line unbroken for road purposes, and that the unbroken space at that time was used and has ever since been used and recognized as a public road. The same plan was pursued nearly, if not quite, the entire length of the road through the section and for more than 40 years buildings have been erected, fences built, groves planted, and the soil cultivated, along this road, and always with reference to it. This evidence is practically uncontradicted, at least it is of such persuasive force that we accept it as true, and are convinced, notwithstanding the plat, that as early as 1866 the line of the road was not...