Gallup v. Bliss

• Decision Date: 13 October 1927
• Docket Number: 4587
• Parties: WILLIAM A. GALLUP, Respondent, v. ADELAIDE BLISS and THE CITY OF EMMETT, a Municipal Corporation, Appellants
• Court: Idaho Supreme Court

262 P. 154

44 Idaho 756

WILLIAM A. GALLUP, Respondent, v. ADELAIDE BLISS and THE CITY OF EMMETT, a Municipal Corporation, Appellants

No. 4587

Supreme Court of Idaho

October 13, 1927

MUNICIPAL CORPORATIONS-PUBLIC STREETS-OBSTRUCTION-LIABILITY OF CITY FOR INJURY CAUSED THEREBY-APPEAL AND ERROR-OWNER'S LIABILITY-SUFFICIENCY OF EVIDENCE.

1. Even though C. S., sec. 1304, does not apply to a city so that it cannot acquire a street by prescription, and though it has not, as is necessary, under section 3977, to make it a public street, accepted by ordinance a dedication thereof, yet it having been used by the public and worked by the city for at least five years, the city by reason of the implied invitation to the public to use it as a street becomes liable for injury to a traveler from obstruction negligently placed therein, as a post, which would improperly interfere with use thereof as a street.

2. Conceding that liability of owner of land used as a street to traveler for injury to him from post placed therein by such owner rests on a different basis from that of the city, no instructions having been offered by such owner tending to differentiate his liability from that of the city, it is unnecessary for appellate court, on appeal by both defendants from judgment against them, to discuss, determine or define such difference, if any.

ON PETITION FOR REHEARING.

3. Though land long and commonly used by the public as part of a street was the private property of the adjoining owner, he placing posts therein without lights or other warnings of the danger, whereby one driving there was injured, is liable, as while a land owner may resist a trespasser with all necessary force, he may not lay a trap or pitfall for him, much less for one unconscious of trespassing.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.

Action for damages for personal injuries. Judgment for respondent. Affirmed.

Judgment affirmed and costs awarded to respondent.

J. P Reed, Geo. C. Huebener, Wm. M. Morgan and Earl B. Smith, for Appellants.

"It is elementary and fundamental that the power to lay out, open, widen, extend, vacate or abandon public highways, public parks, parkways or boulevards is legislative, pure and simple, to be exercised by the legislature itself or by municipal boards to which it may be delegated." (State v. Board of Park Commrs., 100 Minn. 150, 110 N.W. 1121, 9 L. R. A., N. S., 1045; Elliott on Roads, 4th ed., sec. 10.)

There is no legislative authority, in Idaho, for the creation of a street in a city or village by prescription. The provision of C. S., sec. 1304, that "all roads used as such for a period of five years, provided the latter shall have been worked and kept up at the expense of the public, . . . . are highways," relates to country roads and not to streets in cities and villages. (18 C. J., sec. 67, p. 73, and note 83; Kellar v. Louisville, 10 Ky. App. 541; 18 C. J., sec. 75, p. 79, and notes 57 and 58; Chapman v. City of Sault Ste. Marie, 146 Mich. 23, 109 N.W. 53; Hartley v. Vermillion, 7 Cal. Unrep. 15, 70 P. 273; 28 Cyc. 832; C. S., secs. 1303, 1306, 3942, 3962, 3963, 3976 and 3977; City of Genesee v. Latah County, 4 Idaho 141, 36 P. 701; Town of Juliaetta v. Smith, 12 Idaho 288, 85 P. 923; Boise City v. Hon, 14 Idaho 272, 94 P. 167; Hanson v. Proffer, 23 Idaho 705, 132 P. 573; City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86.)

Even if a right of way for a street in a city might be acquired by prescription, it could only be by use of the land for street purposes for the statutory period, under claim of right, and recognition and admission by the city that no such right exists is inconsistent with such claim and will defeat it. (Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654; 29 C. J. 383, sec. 15; City of Spokane v. Great Northern Ry. Co., 91 Wash. 613, 158 P. 244; Scheller v. Pierce Co., 66 Wash. 298, 104 P. 277; Board of County Commrs. v. Patrick, 18 Wyo. 60, 104 P. 531, 107 P. 748; City of Topeka v. Cowee, 48 Kan. 345, 29 P. 560; Parrott v. Stewart, 65 Ore. 254, 132 P. 523; Stotts v. Dichdel, 70 Ore. 86, 139 P. 932.)

Whenever a highway is claimed to have been created by prescription, the claim cannot be sustained unless for a period of five years it has been worked and kept up at the expense of the public. (C. S., sec. 1304.)

S. L. Tipton, for Respondent.

When the evidence is conflicting the verdict of the jury will not be reversed on appeal. (McMahon v. Cooper, 23 Idaho 413, 130 P. 456; Roseborough v. Whittington, 15 Idaho 100, 96 P. 437.)

It is the duty of municipalities to keep their streets and highways free from nuisances and they are liable for injuries caused by defective streets. (Carson v. City of Genesee, 9 Idaho 244, 74 P. 809; Moreton v. St. Anthony, 9 Idaho 532, 25 P. 262; Miller v. City of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660; Dennis v. Village of Elmira Heights, 59 A.D. 404, 70 N.Y.S. 312; Aurora v. Bitner, 100 Ind. 396; C. S., secs. 1302, 1304, 1333, 3976.)

C. S., sec. 3979, has no application to highways acquired by prescription. (City of Kellogg v. McRae, 26 Idaho 73, 117 P. 86; Village of Sand Point v. Doyle, 11 Idaho 642, 83 P. 598, 4 L. R. A., N. S., 810; People v. Southern Pacific Ry. Co., 68 Cal.App. 153, 228 P. 726.)

Consent of owner is not required to establish highway by prescription. All that is necessary is five years' use and work at public expense. Owner need not be adverse. (Gross v. McNutt, 4 Idaho 300, 38 P. 935; Meservey v. Gulliford, 14 Idaho 133, 93 P. 780; Town of Juliaetta v. Smith, 12 Idaho 288, 85 P. 923; People v. Southern P. Ry. Co., supra; Elliott on Roads, sec. 124.)

Payment of taxes does not stop a claim of highway by prescription. (Lockey v. City of Bozeman, 42 Mont. 387, 113 P. 286; Seattle v. Hinckley, 67 Wash. 273, 121 P. 444; Campau v. City of Detroit, 104 Mich. 560, 62 N.W. 718.)

Appellant, Mrs. Bliss, is liable for injury to respondent, having obstructed the highway. (Stricker v. Hillis, 17 Idaho 646, 106 P. 1128.)

GIVENS, J., T. BAILEY LEE, J. Wm. E. Lee, C. J., Taylor, T. Bailey Lee, JJ., and Givens, JJ., concurring. Budge, J., dissenting.

OPINION

GIVENS, J.

Respondent was injured by being thrown from an automobile, in which he was riding, colliding with one of a series of posts which appellant Bliss had placed on what she claims as her land in the City of Emmett, being a strip of land about 42 feet wide from west to east and 170 feet long running from north to south, inclosed within the shaded portion of Plaintiff's Exhibit "A" (attached hereto), extending into and a part of what would be a street of the city if respondent's contention be correct. The part of appellant Bliss' land where the fence was located, with other land theretofore deeded to the city for street purposes by other persons, the dedication of which had never been accepted or confirmed by the city council (see the appended illustration copy of Plaintiff's Exhibit "A"), constituted a strip of ground which the respondent contended had been traveled by the public and worked at the public expense between the so-called "grade line" on said exhibit for such a length of time, in such a manner, and to such an extent that it had become a street by prescription. Appellant Bliss was sued on the theory that the posts were dangerous obstructions in a public street and the city was joined with her as a defendant on the theory that it had negligently violated a duty which it owed to the respondent to keep its streets free from dangerous obstructions. Separate answers were filed by the defendants. Defendants have separately appealed from a judgment on a verdict for respondent.

[SEE PLAINTIFF'S EX. "A." IN ORIGINAL]

The errors assigned may be thus classified:

First, that respondent was permitted to introduce evidence tending to show the acquisition of a prescriptive right, and on the other hand appellants were not permitted to introduce evidence showing that the city as a political entity did not claim title, (a), by prescription, or (b), by dedication and formal acceptance by ordinance as required by statute. (C. S., sec. 3977.)

Second, that the court improperly instructed that the city could acquire a street by prescription, and the converse that the court improperly refused to instruct that a city could not acquire a street by prescription, and--

Third and last, that the evidence is insufficient to sustain the verdict.

Granting that appellants are correct in their contention that sec. 1304, C. S., does not apply to cities and that a city cannot acquire, as such, a street by prescription, does not dispose of the controversy. This action does not involve the conflicting rights of the owner of the land as against the city or vice versa.

Appellants contend that C. S., sec. 3977, requires the acceptance by ordinance before a city street can become such. Use by the public and work done by the city may, however, without such acceptance by ordinance, make the city liable for accidents occurring in what would be, if accepted in proper manner, a city street.

"The last clause of section 77, art. 1, c. 14, Comp. St., entitled 'Cities of the Second Class and Villages,' provides 'and that no street or alley which shall hereafter be dedicated to public use by the proprietor of ground in any city or village shall be deemed a public street or alley, or to be under the use or control of the city council or board of trustees, unless the dedication shall be accepted and confirmed by an ordinance especially passed for such purpose.' It is conceded that no such acceptance had taken place, and the village had no control over that part of the street in question when the accident occurred, and is not liable for...