Hatch Brothers Company v. Black

• Decision Date: 18 March 1918
• Docket Number: 884
• Citation: 171 P. 267,25 Wyo. 416
• Parties: HATCH BROTHERS COMPANY v. BLACK, ET AL
• Court: Wyoming Supreme Court

171 P. 267

25 Wyo. 416

HATCH BROTHERS COMPANY v. BLACK, ET AL

No. 884

Supreme Court of Wyoming

March 18, 1918

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

Heard on petition for rehearing. For former opinion, see page 109 this volume; also 165 P. 518.

Rehearing denied.

B. M Ausherman and N. E. Corthell, for defendants in error, on petition for rehearing.

The questions involved are of importance, and it is to be regretted that the case was not argued orally. The action is brought for an injunction to restrain defendants from interfering with the use of an alleged highway through lands owned by them, acquired under the public land laws in 1912. By cross-petition, defendants sought damages for alleged past trespasses on their lands. Plaintiff's action was of an equitable nature, while defendant's cross-petition while involving the highway question incidentally was a question for the jury. Plaintiff relied upon the principle that a highway may be established through user by the unofficial public without official action. Defendants in error were justified by expressions found in the two opinions in the case of Commissioners v. Patrick, 18 Wyo. 130, in assuming that such is not the rule in Wyoming. If it were admitted that the common law doctrine of highways is controlling, yet the evidence and contentions of fact of plaintiff did not justify a finding that a highway had been established; while the common law doctrine of highways has been invoked in the early history of many of the states and may be applicable to an old, settled agricultural community it is inapplicable to our conditions. Illustrations of this are found in the following cases: Hecht v. Harrison, 5 Wyo. 289, 286; Cosgriff v. Miller, 10 Wyo. 190 222; Martin v. Platte Valley Sheep Co., 12 Wyo. 432, 450; Haskins v. Andrews, 12 Wyo. 458, 471; Hardman v. King, 14 Wyo. 503, 509. The conditions which determine the doctrine of our courts on this subject are strikingly the same as the questions affecting the unofficial establishment of highways by the usage of travel in view of the vast areas of unsettled lands in public ownership used for grazing. This court has also referred to conditions which differentiate Wyoming from Great Britain rendering the common law doctrine of riparian rights locally inapplicable. (Moyer v. Preston, 6 Wyo. 308, 318; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 122; Willey v. Decker, 11 Wyo. 496, 515; all of which are analagous.) The only statute of this state or territory which ever gave countenance to the common law doctrine was the statute of 1869, and which was in effect from 1869 to 1877, but the highway in question was not established during that period, and the statute was repealed in 1877, which enacted a law placing highways under the control of county commissioners (Laws 1877, p. 135), and that statute was amended in 1886 (Chapter 99), which was the statute in effect at the time the road in question was supposed to have become established. This act stood unchanged until 1895, whereupon a highway code was enacted. (Laws 1895, Chapter 69.) The effect of this later legislation was to confer broad powers of supervision upon the board of county commissioners in the establishment of highways. The act of Congress (R. S. 2477) was not intended to create highways, except post roads. (Const. U.S. Art. 1, Sec. 8.) For the reasons given, we think it is clear that no such an acceptance by the unofficial public was authorized. (Commissioners v. Patrick, supra.)

Corthell, McCullough & Corthell, amici curiae.

It is no part of the province of the Federal Government to establish highways within the limits of a state, except as incidental to the establishment of post roads, or to the regulation of interstate commerce. There is no federal common law as such. (Smith v. Alabama, 124 U.S. 465; Wheaton v. Peters, 8 Peters, 591, 658.) Counsel for plaintiff apparently relied upon the act of Congress (Sec 2477) ex proprio vigore to establish the highway (U. S. R. S., Sec. 2477); which does not purport to establish highways, as it does not define their width, prescribe their location, or provide for construction or maintenance, nor does it regulate their use. A government grant is merely an offer requiring acceptance, and until there has been an authorized acceptance of this grant, it is a mere potentiality. Highway establishment is a function of state police power. (New Orleans Co. v. Louisiana Light Co., 115 U.S. 650; Jones v. Brim, 165 U.S. 180, 182.) The act should not be regarded as anything more than the offer of a proprietor to permit a highway to be established by constituted state authority. The contention of plaintiff is unsupported by statute or state decision. Plaintiff apparently relies upon expressions of opinion of the courts of Arizona, California, Colorado, Montana, Nebraska, Oregon and Washington. Reference is made to Copper Co. v. Reese, 12 Ariz. 224, 100 P. 777, and attention is then drawn to Duffield v. Ashurst, 12 Ariz. 360, 100 P. 820, citing with approval Montgomery v. Somers, 50 Ore. 259, 90 P. 674, discussed at length by plaintiff's counsel, but neither of the above cases support plaintiff's contention, for the reason that the result was governed by statutory provisions. The same is true of the California cases. (Bequette v. Patterson, 104 Cal. 282, 37 P. 917; McRose v. Bottyer, 81 Cal. 122, 22 P. 393.) The act of Congress in question is interpreted in the case of Sutton v. Nicolaisen, 44 P. 805, 806. (See also Section 2618, Political Code of California, and U. S. v. Rindge, 208 F. 611, 617.) We understand that this court rested its original decision largely upon the authority of Sprague v. Stead, 56 Colo. 538, 139 P. 544. The Colorado statute (2 Mills, Sec. 3928) provides for the creation of highways by dedication to public use. (Starr v. People, 17 Colo. 458, 30 P. 64, 66; Lieber v. People, 33 Colo. 493, 81 P. 270, 271.) As to Montana, the statute appears to be substantially the same as that of California (R. C., Sec. 1337), and the establishment of highways by public user in Montana appears to be rested upon statutory authority. (Barnard Realty Co. v. City of Butte, 48 Mon. 102, 136 P. 1067.) The Montana authorities rest upon statutes. In the Nebraska cases cited, the effect of the Nebraska statutes was apparently not considered, but the Nebraska statute falls far short of the scope of the Wyoming statute; moreover, another statute of Nebraska authorizes the establishment of roads upon section lines. (2 Cobbey A. S., Sec. 6098.) Most of those cases show an attempt at least to establish highways by user and by some work performed under county authority. (Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47; Eldridge v. Collins, 75 Neb. 65, 105 N.W. 1085; Cassidy v. Sullivan, 75 Neb. 847, 106 N.W. 1027; Van Wanning v. Deeter, 78 Neb. 284, 110 N.W. 703.) The Nebraska decisions cannot be considered persuasive authority on the question of the effect of the Wyoming statutes, since their own statutes do not seem to have been considered in reaching the conclusions. We are unable to find in the cases reported from Oregon an exposition of the statutory law of that state, and the common law rule has not been changed there. (Grady v. Dundon, 30 Ore. 333, 47 P. 915; Bayard v. Standard Oil Co., 38 Ore. 438, 63 P. 614; Nosler v. Coos Bay R. & E. R. Co., 39 Ore. 331, 64 P. 644.) A number of Washington authorities are cited in the brief of counsel, but they are apparently influenced by the Washington statute, and those cases can hardly be considered as precedents to be followed in Wyoming. The court in its former opinion refers to cases from three additional states, the Kansas authorities appearing to place that court in the attitude of limiting the doctrine in cases where the decisions uphold highways to cases where there have been direct acceptance by legislative act, or an attempt at least on the part of public officers charged with the duty to establish highways. In other words, that court has rested its doctrine upon the statutes of the state rather than upon the common law. On examination of the authorities cited from Kentucky, it seems safe to assume that there was no statute casting any doubt upon the common law rule of establishment by user. The Tennessee decisions may be taken as establishing at least by dicta the recognition of the doctrine of common law establishment of highways by unofficial public user. The significant cases may be classified in three different groups: (a) Arizona, whose statutes and judicial decisions place it in the same position which Wyoming seems to occupy, where the methods of establishing highways prescribed by statute are held to exclude the operation of the common law doctrine. (b) California, Colorado, Montana and Washington, where the state statutes establish an opposing rule, and either by affirmance of the common law doctrine or by the creation of a new statutory rule fully justify and require the decisions of their courts set out in this brief. (c) Kansas, Kentucky, Nebraska, Oregon and Tennessee, where the statutes may or may not have been consistent with the common law rule. However, in the case of Nebraska, it seems to stand upon a footing of its own, and its judicial decisions seem to be in conflict with its statutory declarations. The authorities above discussed appear to be affected by considerations tending to weaken their application to the case at bar, for the following reasons: (1st) In many of them, the questions of the highway were only incidentally involved; (2nd) in only a few was the question of the effect of the act of Congress involved; (3rd) in most of the cases, the highway rested to some extent upon official action of some sort; (4th) in a large portion, the statutes...