Kansas City & Omaha Railway Company v. State ex rel. Kearney County
| Decision Date | 11 November 1905 |
| Docket Number | 13,982 |
| Citation | 105 N.W. 713,74 Neb. 868 |
| Parties | KANSAS CITY & OMAHA RAILWAY COMPANY v. STATE OF NEBRASKA, EX REL. KEARNEY COUNTY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Kearney county: ED L. ADAMS, JUDGE. Reversed and dismissed.
REVERSED.
J. W Deweese, J. L. McPheely and Frank E. Bishop, for plaintiff in error.
Lewis C. Paulson, contra.
JACKSON C. DUFFIE and ALBERT, CC., concur.
The county of Kearney instituted an action against the Kansas City & Omaha Railway Company to compel the railway company to put in a crossing at a point where it was alleged that the company's right of way crossed a public highway. In the petition it was alleged that the company's railway crossed a public highway in the county of Kearney and state of Nebraska, said highway being on section line lying to the east of the southeast quarter of section 24, township 6 range 13; that the railway company had been notified by the supervisor of the road district, in which it was alleged that the road was situated, to put in a crossing over its right of way at the point where the public highway crossed the company's right of way; that the company had refused to comply with the requirements of the notice and to put the crossing in, as requested. By the company's answer the existence of a public highway along the section line in question was put in issue. Upon the trial there was a finding for the relator, and a peremptory writ of mandamus was allowed to compel the construction of the crossing. The railway company prosecutes error, and contends that the evidence does not sustain the judgment.
It appears from the evidence that the section line in question is part of the county line between the counties of Adams and Kearney, and there is no pretense that any action was ever taken on the part of the authorities of either county to establish a public highway along this line, and the only evidence that a public highway did in fact exist there was brought out in an effort to establish the existence of such highway by user. It appears that the company's railway was built across the section line in question in the year 1887, and that at the point where it crosses the alleged public highway there is a fill of 14 feet, and that, at least since the railway was built, no one has traveled the section line at the point where it is crossed by the railway. The railway extends from the east to the west, and on the south of the railway for several years the section line for one-half mile has been fenced in pasture, and is not open for travel. It is evident that, prior to the time the railway was built, the land on either side of the section line was open prairie, and the country sparsely settled.
Concerning the use of the section line as a public highway, W. A. King testified on behalf of the plaintiff that in the year 1903 he was the road overseer in road district No. 11 in May township, Kearney county; that for some distance both north and south of the railway the alleged public highway was in his district; that the railway crossed the section line in a kind of a draw; that there was a 12 or 14 foot fill; that the next section line north of the railway was a little over half a mile; that the section line for about 60 or 70 rods on the north had been traveled for about 23 years, and that then they angled off into the hills; that it had been traveled clear down to the railway track; and that it was impossible to cross the railway at that point. On cross-examination he testified that the last time he was along that line was in the fall of 1903; that at that time he could travel down to the fill; that he had not crossed the railway track, nor had any one else, since it had been laid there; that he had never...
To continue reading
Request your trial