Holsworth v. O'Chander

• Decision Date: 16 September 1896
• Docket Number: 6663
• Citation: 68 N.W. 334,49 Neb. 42
• Parties: CHARLES HOLSWORTH, APPELLANT, v. FRED O'CHANDER, APPELLEE
• Court: Nebraska Supreme Court

68 N.W. 334

49 Neb. 42

CHARLES HOLSWORTH, APPELLANT, v. FRED O'CHANDER, APPELLEE

No. 6663

Supreme Court of Nebraska

September 16, 1896

APPEAL from the district court of Dakota county. Heard below before NORRIS, J.

AFFIRMED.

R. E Evans and John T. Spencer, for appellant.

References Langdon v. State, 23 Neb. 509; Rathman v Norenberg, 21 Neb. 467; Graham v. Flynn, 21 Neb. 229; O'Dea v. State, 16 Neb. 241; Elliott, Roads & Streets, 7, 658-671; City of Eureka v. Armstrong, 22 P. 828 [Cal.]; Hartford v. New York & N.E. R. Co. 59 Conn. 250; 21 Am. & Eng. Ency. Law, 128; Washington, etc. Steam Packet Co. v. Sickles, 72 U.S. 580, 5 Wall. 580, 18 L.Ed. 550; 2 Black, Judgments, 739; Bigelow, Estoppel [3d ed.] 112; Cecil v. Cecil, 19 Md. 80; Springport v. Teutonia Savings Bank, 75 N.Y. 397; Dodge v. Zimmer, 110 N.Y. 43; Densmore v. Tomer, 14 Neb. 392; 1 Herman, Estoppel, secs. 155, 291, 292; Cabot v. Washington, 41 Vt. 168; Hill v. Morse, 61 Me. 541; Brenner v. Bigelow, 8 Kan. 496; Strother v. Butler, 17 Ala. 733; Wood v. Jackson, 8 Wend. [N.Y.] 9; Cromwell v. Sac County, 94 U.S. 351; Hooker v. Hubbard, 102 Mass. 245; Russell v. Place, 94 U.S. 606; Potter v. Baker, 19 N.H. 166; Bosquett v. Crane, 51 Cal. 505; Standish v. Parker, 2 Pick. [Mass.] 20; Teal v. Terrell, 48 Tex. 491; Baker v. Rand, 13 Barb. [N. Y.] 152; Harding v. Hale, 2 Gray [Mass.] 399; Rube v. Sullivan, 23 Neb. 783; Quinton v. Burton, 61 Iowa 471; Elsworth v. Lord, 42 N.W. 389 [Minn.]; Elk County v. Earley, 15 A. 602 [Pa.]; Appeal of Township of North Manheim, 14 A. 137 [Pa.]; City of Demopolis v. Webb, 6 So. [Ala.] 408; Burlington v. Schwarzman, 52 Conn. 181.

Barnes & Tyler, Lynn & Sullivan, Carter & Brown, J. C. Crawford, Jay & Beck, and Mockett, Rainbolt & Polk, contra.

References: Cole v. City of Muscatine, 14 Iowa 296; Coykendall v. Durkee, 13 Hun [N.Y.] 260; Putnam v. Valentine, 5 Ohio 187; Irwin v. Dixion, 50 U.S. 10, 9 How. 10, 13 L.Ed. 25; New York v. Mapes, 6 Johns. Ch. [N.Y.] 46; Mohawk & H. R. Co. v. Artcher, 6 Paige Ch. [N.Y.] 83; Dana v. Valentine, 5 Met. [Mass.] 8; Parker v. Winnipiseogee, 67 U.S. 545, 2 Black 545, 17 L.Ed. 333; Van Bergen v. Van Bergen, 3 Johns. Ch. [N.Y.] 282; Porter v. Witham, 17 Me. 292; Crowder v. Tinkler, 19 Ves. [Eng.] 617; Tichenor v. Wilson, 4 Halst. [N.J.] 197; Case v. Beauregard, 101 U.S. 688; 1 Herman, Estoppel, secs. 155, 230; 21 Am. & Eng. Ency. Law, 129; Westmoreland v. Conemaugh, 34 Pa. 231; Ferris v. Bramble, 5 Ohio St. 109; People v. Brighton, 20 Mich. 71; Anderson v. Commissioners of Hamilton County, 2 Ohio St. 644; Beebe v. Scheidt, 13 Ohio St. 415; Milton v. Wacker, 40 Mich. 229; Shue v. Highway Commissioners, 41 Mich. 638; State v. Weimer, 20 N.W. 171 [Iowa]; Alcott v. Acheson, 49 Iowa 569; Wabaunsee v. Muhlenbacker, 18 Kan. 129; McCearly v. Lemeunier, 3 So. [La.] 649; Tupper v. Huson, 1 N.W. [Wis.] 332; Tillman v. People, 12 Mich. 405; Field v. Village of Manchester, 32 Mich. 279; Wayne County v. Miller, 31 Mich. 447; Speir v. New Utrecht, 24 N.E. [N.Y.] 692.

OPINION

POST, C. J.

This is an appeal from a decree of the district court for Dakota county dismissing the petition of the plaintiff, who, as overseer of highways, seeks to restrain the defendant from the threatened obstruction of a certain alleged public road within the plaintiff's district. The defendant for answer alleges that he is the owner, in his own right, of the premises described, and admits the building of a fence as charged at the point in question, but denies the existence of a public road upon his said premises. He also pleads as a defense a former judgment, to which extended reference will hereafter be made. The reply puts in issue all allegations of new matter contained in the answer.

It is shown by the evidence in the record that in the year 1885 one Lars O'Chander, defendant's immediate grantor, was the owner in his own right of the premises described in the petition, to-wit, the south half of the northeast quarter of section 28, township 27, range 8 east, in Dakota county, and also of the southeast quarter of section 29, in said township; that in the month of July of said year one Barnes, a predecessor of the plaintiff, in the office of overseer of highways, claiming the existence of a public road over and upon the premises above described, and in the exercise of his authority as such overseer, cut down and removed a fence before that time erected by the said Lars O'Chander across said alleged road on the southeast quarter of section 29, about eighty rods distant from the point of the defendant's threatened obstruction; that an action of trespass was thereupon brought by the said Lars O'Chander as plaintiff against the overseer above named and which was prosecuted to judgment upon its merits in favor of said plaintiff in the district court for Dakota county. It is also clear from the record that the purpose of the plaintiff is by means of this suit to assert in behalf of the public the identical claim which was relied upon as a justification by his predecessor in the suit last mentioned, viz. the existence of a public highway through sections 28 and 29, by reason of certain proceedings before that time had by the county board of said county, and also on account of the alleged continued and uninterrupted use thereof by the public as such for more than ten years. Pertinent in this connection is the answer filed by Barnes in that action, viz.:

"Comes now the defendant and for answer to plaintiff's petition filed herein states: That he denies each and every allegation therein contained except such as are hereinafter admitted or otherwise answered; that as to whether plaintiff is the owner of the real estate in said petition described defendant has neither knowledge nor information sufficient to form a belief, and defendant states the fact to be that there is running through said real estate a public highway or road, and further, that plaintiff is estopped from denying that the same is a lawful public highway or road for the reason that the said plaintiff has received the sum of $ 100 as damages from the said county for land taken in the establishment of said highway; and for the further reason that plaintiff in the year 1882 or 1883 petitioned the board of county commissioners of said county for a resurvey of said highway, which said resurvey was duly ordered by said board and carried out; that the defendant is the supervisor of highways for the district in which said real estate and road are located; that on the 30th day of July, 1885, plaintiff had obstructed the said highway by building a wire fence across and in the same, and that on said day this defendant, finding the said highway so obstructed and acting as such road supervisor, removed such obstruction by cutting the said fence, and thereby opened said highway for travel."

The foregoing allegations having been put in issue by a general denial, there was a trial to a jury, at the conclusion of which a verdict was returned in favor of the plaintiff for nominal damage in obedience to the following peremptory direction of the court, and upon which judgment was subsequently entered:

"1. Plaintiff brings this action to recover damages for trespass upon his land and injury to his fence, alleged to have been committed on July 30, 1885. Defendant admits the removal of the fence and justifies his acts by reason of the fact that he is and was road supervisor and as such removed the fence, which he claims was upon the public highway and obstructed travel.

"2. You are instructed that there is no testimony before you establishing a public road over and across the land where the fence was situated, and the only question for you to determine is the amount of damages plaintiff has sustained by reason of the removal of the fence.

"3. You should assess plaintiff such damages as he has shown himself entitled to by a fair preponderance to be entitled to, and find a verdict accordingly."

There is also evidence tending to prove the acquiescence by the county in the result stated by the abandoning of its claim respecting said road and the removal of a bridge before that time erected on the line thereof. Counsel for plaintiff, however, insist that that judgment is not a bar to this action, because (1) the locus in quo herein differs from that involved in the former suit; (2) there is no privity between this plaintiff and his predecessor in office, Barnes.

To the first contention it is a sufficient answer that the effect which counsel accord to the former judgment is entirely too restricted. Indeed, the inference is irresistible from the facts and circumstances in evidence that the real controversy, and to which the judgment there rendered is responsive, was, as it is in this case, the legal existence as an entirety of the alleged road, as a public highway, through the action of the county board or by reason of adverse user. The fact, therefore, that the locus in quo was a point on the line of the alleged road eighty rods distant from the obstruction now complained of is without significance.

Preliminary to an...