Engle v. Hunt
| Decision Date | 19 January 1897 |
| Citation | 50 Neb. 358,69 N.W. 970 |
| Parties | ENGLE v. HUNT. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. The existence of a legal public road over the premises of a private person may be shown by user alone, but in such case the user must have been with the knowledge of the owner, and have continued the length of time necessary to bar an action to recover the title to the land. This rule, however, does not apply when the user is of wild uninclosed prairie land. Graham v. Hartnett, 7 N. W. 280, 10 Neb. 517, approved, and followed.
2. To established a highway by prescription, there must be a user by the general public under a claim of right, and which is adverse to the occupancy of the owner of the land of some particular or defined way or track uninterruptedly, without substantial change, for a period of time necessary to bar an action to recover the land.
3. To acquire an easement or way on another's land, there must be a use of the way for the length of time which will bar an action for the recovery of title to land, and which is under claim of right or adverse.
4. The evidence held sufficient to sustain the findings and judgment.
Appeal from district court, Seward county; Wheeler, Judge.
Action by Christ Engle against George Hunt for injunction. From a judgment for plaintiff, defendant appeals. Affirmed.
Norval Bros. and Geo. W. Lowley, for appellant.
Biggs & Thomas and Thos. A. Healey, for appellee.
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 N., of range 3 E. of the sixth P. M. in Seward county, and that said premises were, and had been during several years preceding the commencement of this suit, inclosed 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 fence 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; 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 23 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, “every one had a road or grove wherever his fancy or necessity dictated.” There were few fixed roads, but many “trails” or “tracks,” as ...
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