Kime v. Cass County

• Decision Date: 21 April 1904
• Docket Number: 13,454
• Citation: 99 N.W. 546,71 Neb. 677
• Parties: MICHAEL G. KIME ET AL. v. CASS COUNTY ET AL. [*]
• Court: Nebraska Supreme Court

99 N.W. 546

71 Neb. 677

MICHAEL G. KIME ET AL. v. CASS COUNTY ET AL. ^[*]

No. 13,454

Supreme Court of Nebraska

April 21, 1904

ERROR to the district court for Cass county: PAUL JESSEN, JUDGE. Reversed.

REVERSED.

H. D Travis and W. Deles Dernier, for plaintiffs in error.

Jesse L. Root, contra.

DUFFIE C. LETTON and KIRKPATRICK, CC., concur.

OPINION

DUFFIE, C.

This action was brought by the heirs of Alfred Kime for the purpose of ousting the county of Cass and the road overseer of road district No. 58 in said county from the possession of a strip of land 4 rods in width and 100 rods in length claimed as part of the highways of said county. An injunction and other equitable relief was asked. The answer was a general denial and the claim that the premises in controversy were part of the highway known as road No. 111, which it is alleged was regularly established by the board of county commissioners in the year 1872. The district court dismissed the plaintiffs' petition, and they have taken an appeal to this court.

The record discloses that at the regular meeting of the county commissioners of Cass county, held on June 4, 1872, a petition was presented for the appointment of a commissioner to examine and locate a county road, commencing at the southwest corner of section 30, town 10 north of range 13 east, and terminating at the road leading from Pollard & Sheldon's mill to Nebraska City: That a commissioner to view and, if in his opinion the public good required, to locate said road, was appointed at said session, and "the county clerk directed to issue a commission to him requiring him to examine the route, after giving public notice of the date when he will make said examination, and to report his action to the county clerk within 20 days after the plan of survey." July 1, 1872, the commissioner made his report to the effect that, after a view of the proposed road, being of the opinion that the public good required its establishment, he proceeded to lay out, mark and plat the same according to law. A plat and field notes of his survey are attached to this report. We do not find in the record any order of the board establishing the road as recommended by the commissioner, but the road appears to have been opened some time in the year 1872 and used more or less from that date down to 1879 or 1880. The road, as recommended by the commissioner, includes the tract of land involved in this controversy, which is a strip 4 rods wide running east from the section line between sections 29 and 30 to intersect with what is known as the Nehawka road. Some time about 1879, Alfred Kime, who then owned and was living upon the premises, gave a right of way at some distance south of the disputed premises, connecting the Nehawka road with the section line road between sections 29 and 30, and this south or "old road," as it is called in the record, was used by the public from 1879 up to 1896, when Michael G. Kime, who was then occupying the premises, fenced this right of way and attempted to prevent further public travel thereon. The old road was closed for about 2 weeks, when it was reopened and the public used the same until April, 1900, when Kime again closed it, whereupon the board of supervisors ordered the road as originally surveyed and located opened. A resurvey was made, the road opened to public travel, and the injunction is sought against what is claimed to be a continuing trespass. From 1879 up to April, 1900, the strip in dispute was not used or traveled as a public highway, and was enclosed and cultivated by the appellees and their ancestors. We do not think it...