Graham v. Hartnett

• Decision Date: 11 November 1880
• Citation: 7 N.W. 280,10 Neb. 517
• Parties: GRAHAM v. HARTNETT.
• Court: Nebraska Supreme Court

10 Neb. 517

7 N.W. 280

GRAHAM

v.HARTNETT.

Supreme Court of Nebraska.

Filed November 11, 1880.

This was an action brought by Hartnett against Graham, in the district court of Dakota county, for trespass on land belonging to Hartnett. Graham justified by setting up in his answer that “at the time of said alleged trespass there was a common and a public highway over said premises, and on and over which all persons had a right to pass, and that defendant, with his stock, did pass over the same, as he had a right to do, doing no unnecessary damage; and because the fence thereon obstructed the same, he and one Patrick Reilly did remove said obstructions thereon.” Reply denying that there was a public highway over said land, etc. Trial had before Savage, J., sitting for Barnes, J. Verdict for Hartnett for $49.40. Judgment on verdict. Exceptions by Graham, who brought the cause here on a petition in error.Isaac Powers, Jr., and Thomas L. Griffey, for plaintiff.

Joy & Wright, for defendant.

LAKE, J.

The plaintiff in error, who was the defendant in the district court, having admitted substantially the acts constituting the alleged trespass, was bound to prove on the trial, in order to prevent a recovery of damages, that the locus in quo was a legal public road, as claimed in his answer. This, we think, he failed most signally to do, and we are now to inquire whether this failure was, as he claims, caused by erroneous rulings of the court against him. It appears that this portion of the plaintiff's land, until quite recently, had never been inclosed, and was wild, uncultivated prairie; that for several years there had been along near the south line thereof a traveled way, known as the “slough road.” It does not appear, however, that this road, as traveled, followed any specified line, or was confined within any defined limits, until after the plaintiff fenced his land early in the summer of the year 1878, when he left unenclosed, along the section line, a strip about 30 feet wide, as the adjoining proprietor on the south of him had previously done, whereby he sought to confine the travel within 60 feet, the usual width of an ordinary county road.

As we understand them, counsel do not claim that they offered testimony adequate to prove that the requisite statutory steps to make this road, as traveled before it was thus fenced out, a legal highway, had ever been taken; but they do claim that they offered evidence, which the court rejected, from which the jury would have been justified in finding that it had become such by dedication to public use. That the public may acquire by dedication from the owner an easement in land for the purpose of travel is too well settled to be questioned, and is not questioned here. But, as was said by the supreme court of the United States in Irwin v Dixon, 9 How. 10, “the idea of a dedication to the public of a use of land for a public road must rest on the clear assent of the owner in some way to such dedication.” Where, however, acts alone are relied on to prove it, they must be such as to clearly manifest an intention to dedicate, and the public must have acted upon them in a manner indicating an acceptance thereof. Gwynn v. Homan, 15 Ind. 201;Trickey v. Schlader, 52 Ill. 78.

But where it is sought to show the existence of a legal public road by user alone, it 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 land, which in this state is ten years. Manderschid v. Dubuque, 29 Iowa, 73;Daniels v. R. Co. 35 Iowa, 129. This rule, however, does not apply when, as in this case, the us...