Engle v. Hunt
| Decision Date | 19 January 1897 |
| Docket Number | 6966 |
| Citation | 69 N.W. 970,50 Neb. 358 |
| Parties | CHRIST ENGLE, APPELLEE, v. GEORGE HUNT, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Seward county. Heard below before WHEELER, J. Affirmed.
AFFIRMED.
Norval Brothers and George W. Lowley, for appellant.
References 2 Am. & Eng. Ency. Law, 651, 712; Taft v Commonwealth, 33 N.E. [Mass.], 1046; Wayne County Savings Bank v. Stockwell, 84 Mich. 586; Reimer v Stuber, 59 Am. Dec. [Pa.], 744; French v. Marstin, 57 Am. Dec. [N. H.], 294; Worrall v. Rhoades, 30 Am. Dec. [Pa.], 274; Nelson v. Jenkins, 42 Neb. 133; Weld v. Brooks, 25 N.E. [Mass.], 719; Colburn v. Marsh, 68 Hun [N.Y.], 269; Garrett v. Jackson, 20 Pa. St. 331; Pierce v. Cloud, 82 Am. Dec. [Pa.], 496; Hamilton v. White, 5 N.Y. 9; Sims v. Davis, 34 Am. Dec. [S.C.], 583.
Biggs & Thomas and Thomas A. Healey, contra.
The appellee filed a petition in the district court of Seward county, in which it was alleged that he was the owner of, and in possession, and had been since a day not definitely stated, of certain described portions of section 26, in township 10 north, of range 3 east of the 6th P. M. in Seward county, and that said premises were, and had been during several years preceding the commencement of this suit, enclosed by a fence; that on or about the 3d day of April, 1893, and at other times subsequent thereto, the appellant wrongfully and unlawfully destroyed, broke, and removed the gates of appellee on said premises and used a portion of the land of appellee as a road or highway. A threatened continuation of the alleged trespasses was pleaded, and the petition concluded with a prayer that the appellant be enjoined from committing any and all of the threatened acts. To the petition the appellant filed an answer, in which it was admitted that he had done the things with the doing of which he stood charged in the petition, but pleaded that he was the owner of certain portions of the same section of land described in appellee's petition; that there was a public highway on and along the half section line running east and west through said section, which had become such public highway or road by the length of time which it had been in use as a road by the public or had been established as a highway by prescription. It was further set forth that the appellant had, by use or by prescription, acquired an easement, a right to pass to and from his land, along the line aforesaid and over the appellee's land; that there had never been any fence prior to the time (January, 1893), when it was alleged appellant tore one down "at the place where it was pleaded the trespass in this particular was committed, and that he removed the fences then and there, and at the other times stated in the petition, for the reason that they constituted obstructions to the road or highway and barred him from the rightful use and enjoyment thereof. To this answer a reply was filed, and of the issues joined a trial resulted in a judgment for the plaintiff, from which the defendant has appealed to this court.
Counsel for appellant contend that the findings and judgment of the trial court were not sustained by the evidence and were contrary to the weight thereof; and that under the rules of law applicable to the facts as they appeared in the evidence the judgment was erroneous. It was undisputed that no plat of any road on the half-section line in question had ever been made or recorded; and further, that no work had ever been done by the public or at public expense, on the line as a road. A number of persons who had known the section in the early days and years of the settlement of Seward county, and some of them during the years which had intervened to the time of the trial, and others of them only during portions of such time, were sworn and testified in regard to the land of section 26 and the roads across it, and more particularly the parts of the section which, at the time of the trial, belonged to appellee. It appeared in evidence that twenty-three or more years prior to the date of the trial the land was "raw" or uncultivated prairie, and, as some of the witnesses in substance expressed it, "Everyone had a road, or drove wherever his fancy or necessity dictated." There were few fixed roads, but many "trials or tracks" as they were called. Several of the witnesses state in respect to the road across the land of appellee, in the early years of the settlement, substantially as did one called for defendant, that "they did not travel along on the half-section line, but used to angle across the land." It further appeared that the travel over this land was in the main, at first, by parties going to the river, which ran along near the other side of the section from that where the land afterwards purchased by the appellee was situated, to reach the timber which stood there, to cut it for fuel, or buy it of persons who had cut it and had the wood for sale, and haul it home by way of these same prairie roads or "tracks" by which they had come; and by others driving to a place at or near the one end of this half-section line, where the river was fordable or where there was a ford. Some years subsequently, probably during the year 188...
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