Hill v. McGinnis

• Decision Date: 19 March 1902
• Docket Number: 11,414
• Citation: Hill v. McGinnis, 64 Neb. 187, 89 N.W. 783 (Neb. 1902)
• Parties: ALBERT E. HILL, APPELLEE, v. WILLIAM F. MCGINNIS ET AL. APPELLANTS
• Court: Nebraska Supreme Court

89 N.W. 783

64 Neb. 187

ALBERT E. HILL, APPELLEE, v. WILLIAM F. MCGINNIS ET AL. APPELLANTS

No. 11,414

Supreme Court of Nebraska

March 19, 1902

APPEAL from the district court for Lincoln county.Heard below before GRIMES, J. Affirmed.

AFFIRMED.

H. S Ridgely, for appellants.

Beeler & Muldoon, contra.

OPINION

HOLCOMB, J.

Plaintiff, appellee, began an action to restrain the defendants, as county commissioners and road supervisors, from opening and maintaining a public highway across his premises as described in his petition.Issues were joined, and a trial had, resulting in a judgment perpetually enjoining the defendants from in any way interfering with the plaintiff in the possession of the real estate over which it is sought to maintain such highway.Defendants appeal.

Plaintiff it is conceded, resides on and is the owner of the real estate described in his petition, over which the roadway is claimed to exist, and has the same inclosed with a wire fence, and uses it for farming and pasturage purposes.The right to maintain a roadway across the land is based on the following order, made by the county commissioners: "The petition of residents of Cotton Wood, Gaslin, Fox Creek, Deer Creek, and Walker precincts to declare a public highway open by user was taken up and granted and the said route is hereby a public highway and open as follows: the route traveled by the public from the station of Ingham on the B. & M. R. R. section 30 town 9 north range 26 W. northwesterly up Deer creek to the head of said canon over the divide into the east fork of Snell canon thence down the east fork of Snell to where it unites with the main canon connecting at this point with county road 240."The sole and only question presented for determination by the record is whether the public has acquired a prescriptive right to the use of the strip of land, along which is a traveled road, as a public highway by adverse user for a period beyond the statute of limitations concerning title to real property.It is contended by the defendants that by user for more than ten years the public has acquired an easement over the land for a public road, and therefore their right to maintain it as such, and destroy the plaintiff's gates and fencing inclosing the same with his other land; and Graham v. Hartnett, 10 Neb. 517, 7 N.W. 280, Shaffer v. Stull, 32 Neb. 94, 48 N.W. 882, andRube v. Sullivan, 23 Neb. 779, 37 N.W. 666, are cited in support of such contention.The undisputed facts show, we think, more or less travel by the public across the land, not at the same place, but varying from four to eight rods at different places, for more than ten years before the order quoted was made by the county commissioners.The evidence is also conclusive that at no time prior to the entry of the order have the authorities of the county or road district exercised or attempted to exercise any control or other acts of dominion over the strip in question used for travel by the public.It is shown that the plaintiff entered the land as a timber claim in 1889, that he has been in control and possession of it ever since, and for several years prior to the commencement of the action had maintained an inclosure around his land, the traveling public being permitted to gain ingress...