Hatch Bros. Company v. Black

• Decision Date: 11 June 1917
• Docket Number: 884
• Citation: 25 Wyo. 109,165 P. 518
• Parties: HATCH BROS. COMPANY v. BLACK, ET AL
• Court: Wyoming Supreme Court

165 P. 518

25 Wyo. 109

HATCH BROS. COMPANY v. BLACK, ET AL

No. 884

Supreme Court of Wyoming

June 11, 1917

ERROR to District Court, Uinta County; HON. JOHN R. ARNOLD, Judge.

Action by the Hatch Bros. Company against Joseph Black, et al., to restrain defendants from obstructing an alleged highway and for damages. Defendants denied the existence of a public highway and cross-petitioned for damages for trespass on their lands by plaintiff. From a judgment awarding defendants damages, the plaintiff brings error.

Reversed.

Payson W. Spaulding and Bagley & Ashton, for plaintiff in error.

The principal question involved in this appeal is whether a road was established by the acceptance by the public of a grant or right of way for highway across public land. The section of the federal law providing the grant being Section 2477 Compiled Laws U. S. The court erred in refusing instructions requested by plaintiff in error as to the effect of said statute. The testimony of nine witnesses introduced by plaintiff in error in the court below was to the effect that the road had been used by the public for from fifteen to twenty-five years. Instructions numbered 1 to 12, inclusive requested by plaintiff and refused by the court related to said grant and acceptance, and the court erred in refusing to give them; the state can assert no rights in government land (Van Brocklin v. Anderson, 117 U.S. 151.) No particular ceremony is necessary in the dedication of land for public use. (Cincinnati v. White, 6 Peters, 431 8 L.Ed. 452.) Homestead entries made after the establishment of a road across public land are subject thereto. (Wason Co. v. Townsite Co., 21 L. D. 351; Pasadena Co. v Schneider, 31 L. D. 405.) Public use is sufficient. (Wallowa County v. Wade, 43 Ore. 253, 72 P. 793.) The case of Commrs. v. Patrick, 104 P. 531, 107 P. 748 (Wyo.), related to private lands and is not in point. It is not a matter of prescription, but of acceptance of a grant. (Okanogan County v. Cheetham, 80 P. 263, 13 Cyc. 465; Streeter v. Stalnaker, 85 N.W. 47; Van Wanning v. Deeter, 110 N.W. 703; Murray v. Butte, 14 P. 656; Sprague v. Stead, 139 P. 544; Butte v. Mikosowitz, 102 P. 593; Bequette v. Patterson, 37 P. 917; Montgomery v. Somers, 50 Ore. 260, 90 P. 675.) The case of Stofferin v. Okanogan County, 136 P. 484, relied on by defendants below is not in point on the facts, the lands there involved being a ceded portion of an Indian reservation. The Arizona court has followed the case of Montgomery v. Somers. (See Duffield v. Ashurst, 100 P. 821.) The court erred in denying plaintiff's motion for judgment on the pleadings, which presented a clear question of law governing the case. Defendants enclosed government land with their homestead entries, which was unlawful. (Canfield v. U.S. 42 L.Ed. 260; Hanley v. U.S. 186 F. 711; Lilis v. U.S. 190 F. 530; Thomas v. U. S. 136 F. 159.) Intent is not an ingredient of the offense. (Stoddard v. U.S. 214 F. 566; St. Anthony Co. v. McIlquiham, 83 P. 364.) The evidence offered by defendants is vague and indefinite as to the nature of damages claimed and fails to disclose facts affirming a basis of appraisement for market value at the time of the alleged injuries. The measure of damages is the value of the crops at the time of the trespass. (Sutherland, 1023; Sedgwick, 937; Lester v. Highland Co., 27 Utah 470; Teller v. Bay Co., 151 Cal. 209.) Speculative damages are not recoverable. (Lampley v. Atlantic Co., 41 S.E. 517; Watt v. Nevada Co., 46 P. 52.) Mere oral conclusions of witnesses as to the amount of damage is not sufficient to support a judgment for damages. (4 Ency. of Evi., p. 12; Hayes v. Windsor, 62 P. 395; Wichita Co. v. Kuhn, 17 P. 322; Dushane v. Benedict, 120 U.S. 810; Razzo v. Varni, 21 P. 762; Atchinson Co. v. Wilkinson, 39 P. 1043; Chicago Co. v. Muller, 25 P. 210.) The ownership of property may not be established by hearsay evidence. (Survaugh v. Butterfield, 140 P. 757; Jones on Evi. 297; Welsh v. Norton, 73 Ia. 721; State v. Evans, 33 W.Va. 417.) Nor by reputation. (Berniaud v. Beecher, 18 P. 598; State v. McGinnis, 108 P. 133; Wendell v. Abbott, 45 N.H. 349; Wallace v. R. Co., 59 N.Y.S. 651.) Special damages are not provable where not alleged. (5 Ency. Pl. & Pr. 719; Stevenson v. Smith, 108 Cal. 102; Treadwell v. Whittier, 13 Am. St. Rep. 175.)

B. M. Ausherman, for defendants in error.

This action was brought upon erroneous representations in the form of a drawing or sketch map of a proposed "Evanston Chalk Creek County Road" filed with the county clerk upon which no action was ever taken by the county authorities. The evidence showed that no money was ever expended in the establishment or repair of said road, or was said proposed road ever recognized as a public highway. The defense having established the imaginary and illegal character of plaintiff's contentions in seeking recovery for damage unlawfully and maliciously imposed upon them, plaintiff resorted to the doctrine of federal grant and acceptance and submitted an elaborate brief upon an entirely different theory from that upon which its case was brought in the first instance. Numerous authorities relating to different states are cited. Stofferin et ux v. Okanogan County, et al., 136 P. 484, when considered in connection with decisions of this court relative to the principle under consideration would seem to be controlling. In that case it appeared that the commissioners by resolution had accepted the terms of the federal grant, and the trial court entered judgment in support thereof. On appeal the Supreme Court of Washington in reversing the case held that the Act of Congress was a law rather than a conveyance and held that the grant remains in abeyance until a highway is established under some public law authorizing its establishment, that is when the road has been established on petition as prescribed by state law, or by prescription prior to the attaching of adverse rights upon the lands over which the road passes; that the county acquired no vested interest until the road was established in some manner recognized by state law. Counsel for plaintiff in support of its contention that the federal grant is "in presenti" cite the case of Okanogan Co. v. Cheetham, 80 P. 263. But the Cheetham case is reviewed in the Stofferin case, where it is held to be an incorrect construction of the Act. The State of Washington attempted to enact a law accepting the grant, which law was considered in the case of Smith v. Mitchell, 58 P. 667, where it was held that public highways could be established under the federal grant only in the ways recognized by the laws of the state in which the land was located, to-wit: by prescription, dedication, user or proceedings under the statute. The same rule was established by the Supreme Court of Oregon in the case of Wallowa Co. v. Wade, 72 P. 794. Our statute relating to the establishment of roads was considered and carefully reviewed in the recent case of Board of Commissioners v. Patrick, 104 P. 531, 107 P. 748, and particularly at page 749 of the 107th P., denying a rehearing. The doctrine announced by this court, as we read it, is that in addition to the use of a road by the public, the assumption of control and jurisdiction over it by the county board, for the statutory period of limitation is necessary. The pleadings and evidence in the present case show no action on the part of the board of commissioners in the nature of an acceptance or dedication. In a later case the Supreme Court of Washington reaffirmed the doctrine that the establishment of a public highway in some manner provided by statute is necessary to constitute an acceptance of the congressional grant of a right of way across public land and perfect the grant, and that mere user short of the time necessary to establish title by adverse possession is not sufficient. (Volger v. Anderson, 9 L. R. A. N. S. 1223. See also note thereto and citing authorities.) The public use of land for highway cannot ripen into a prescriptive right, until the property is declared a public highway by the board of commissioners. (Barnard Realty Co. v. City of Butte, 136 P. 1064.) Mere convenient use by sufference of owners of land through which it passed will not establish a prescriptive right. (Fitts v. Pierce Co., 138 P. 885, 180 U.S. 92; 45 L.Ed. 440. See also the additional authorities on United States Statute, Sec. 2477, Vol. 6, Federal Statutes Annotated, 498. The establishment of roads is within the police power of the state. (Jones v. Brim, 165 U.S. 182, 41 L.Ed. 667.) Defendants substantiated by ample proof the allegations of their answer. Damages actually sustained, the nature of the damage and the parties causing it are all clearly established by the record.

Payson W. Spaulding and Bagley & Ashton, for plaintiff in error, in reply.

Counsel for defendants quote from the one case construing the federal statute, Stofferin v. Okanogan County, and quotes brief excerpts from Smith v. Mitchell, 58 P. 667; Wallowa Co. v. Wade, 72 P. 794; Volger v Anderson, 89 P. 551, and Cross v. State, 41 So. 875. As to the cases cited, we find Jones v. Brim, a case deciding nothing pertinent to the question here, but relating to a statute fixing the liability of drovers for damages done by their herds to public highways. Dist. of Columbia v. Robinson decides that the mere use of private land for highway purposes is insufficient to constitute a road unless the use is adverse to the owner. Fitts v. Pierce County and Barnard Realty Co. v. Butte involve mixed questions of law and fact as to whether roads existed across private lands. Sheridan County v. Patrick we have already discussed. The other cases cited by defendant in error deal with the federal statutes. Cross v. State was a criminal prosec...