Gross, Road Overseer v. McNutt

• Decision Date: 17 December 1894
• Citation: 38 P. 935,4 Idaho 286
• Parties: GROSS, ROAD OVERSEER v. MCNUTT
• Court: Idaho Supreme Court

38 P. 935

4 Idaho 286

GROSS, ROAD OVERSEER v. MCNUTT

Supreme Court of Idaho

December 17, 1894

HIGHWAY KEPT AT PUBLIC EXPENSE-PRESCRIPTIVE RIGHT.-Under section 851 of the Revised Statutes of 1887, as amended by Session Laws of 1893, page 12, it is not necessary that a highway be worked throughout its entire length, at public expense, to come within the provision of said section which declares that all roads used as such for a period of five years which have been worked and-kept up at public expense are highways.

SPECIAL FINDINGS OF JURY.-Held, that the special findings of the jury were within the issues made by the pleadings and sufficient to sustain the judgment.

OBSTRUCTION OF HIGHWAY-CHANGES IN LINE OF.-Appellants sought to change a highway by changing the lines of their fence, and attempt to justify the change by showing that the new road is shorter and a better road than the one fenced up. Held, that changes in highways cannot legally be so made.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County.

Judgment affirmed, with costs in favor of respondent.

Texas Angel and Hawley & Puckett, for Appellants.

One statute in force at the time this action was brought, section 851 of the Revised Statutes, as amended, Laws of 1893, page 12, reads as follows: "Roads laid out and recorded as highways, by order of the board of commissioners, and 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 or located and recorded by order of the board of commissioners, are highways." There is no highway or line of highway, described by any of the witnesses in the case. Nor in the verdict or judgment. There is no finding by the court or jury that there was any definite line of highway established, by virtue of users of the public, for five years or for any other period. This was a material issue in the case and should have been alleged and proved. (Angell on Highways, 3d ed., sec. 151; Elliott on Roads and Streets 137, 138; South Branch R. R. Co. v. Parker, 41 N. J Eq. 489, 5 A. 641; Bryan v. East St. Louis, 12 Ill.App. 390; Owens v. Crossett, 105 Ill. 354; State v. Horn, 35 Kan. 717, 12 P. 148; Starr v People, 17 Colo. 458, 30 P. 64.) "The public cannot acquire a prescriptive right to pass over land generally, and where a highway is claimed by prescription, a certain and well-defined line of travel must be shown." (Elliott on Roads and Streets, 137, 138; Angeil on Highways, sec. 151; Fox v. Virgin, 11 Ill.App. 513; State v. Horn, 35 Kan. 717, 12 P. 146; Rathman v. Norenberg, 21 Neb. 467, 32 N.W. 305; Cyr v. Dufour, 68 Me. 492; Shellhouse v. State, 110 Ind. 507, 511, 11 N.E. 484; Herold v. Chicago, 108 Ill. 467; South Branch R. R. Co. v. Parker, 41 N. J. Eq. 489, 5 A. 641.)

Quarles & Redwine and R. P. Quarles, for Respondent.

Revised Statutes, section 851, defines a highway to be "all roads used as such for a period of five years." The evidence of witnesses for both parties show that a road ran through the premises occupied by the defendants and which road was used by the public for more than twenty-five years. The highway obstructed had been used for more than five years prior to the encroachments alleged, and by reason of user, if by no other means, the public had a vested right in this highway, and it is immaterial whether the road had been worked or not, as the old statute did not require it to be worked. The legislature cannot take away vested rights, such as is shown to have existed in this case. (Sutherland on Statutory Construction, secs. 164, 480.) The land upon which this highway runs, so far as the premises of the defendants are concerned, was, when the highway was established, public lands of the United States. Section 2477 of the Revised Statutes of the United States is in these words: "The right of way for the construction of highways over the public lands, not reserved for public uses, is hereby granted." Here is an offer to dedicate by the owner. The public accepted the offer by constructing the highway, by having it looked after by public officers, worked and kept in repair. This completed the dedication, and complies with all of the requirements of a dedication. (Angell on Highways, secs. 132, 142; Bequette v. Patterson, 104 Cal. 282, 37 P. 917; McRose v. Bottyer, 81 Cal. 122, 22 P. 393.)

SULLIVAN, J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

This action was brought by respondent, as road overseer, to compel the appellants to remove certain obstruction from the highway described in the complaint, and for damages for refusal to remove the same. The appellants answered, admitting that they had constructed the fence complained of, but denied that it was constructed upon or across any highway which had theretofore been laid out or recorded by order of the board of county commissioners, or that it had been used as a highway for a period of five years prior to said alleged obstruction; and further aver that the public have been provided with a good and sufficient road through said premises that was much shorter and equally as good as the one described in the complaint, and that the public have suffered no inconvenience or detriment whatever by reason of the closing up of said alleged highway. The case was tried by the court with a jury. Eight questions, covering the issues made by the pleadings, were submitted to the jury, and a special verdict was found, and judgment was entered against the appellants. This appeal is from the judgment, and is presented by bill of exceptions.

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