Kootenai County v. Kinman, 6201

• Decision Date: 19 July 1935
• Docket Number: 6201
• Citation: 56 Idaho 1,47 P.2d 887
• Parties: KOOTENAI COUNTY, IDAHO, Appellant, v. J. I. KINMAN and MURIEL KINMAN, husband and wife, Respondents
• Court: Idaho Supreme Court

47 P.2d 887

56 Idaho 1

KOOTENAI COUNTY, IDAHO, Appellant, v. J. I. KINMAN and MURIEL KINMAN, husband and wife, Respondents

No. 6201

Supreme Court of Idaho

July 19, 1935

HIGHWAYS - ESTABLISHMENT BY PRESCRIPTION - EVIDENCE-ABANDONMENT-APPEAL AND ERROR-ASSIGNMENTS OF ERROR, SUFFICIENCY OF.

1. In county's action to enjoin obstruction of road where county board had entered order abandoning land originally granted but not used, assignment that trial court's finding that subsequent rescission of order was not effective held to present nothing for review where it was not contended board had power to rescind, nor that order could be set aside other than by appeal as provided in statute, and where reason why order was not ineffectual was not specified (I. C. A sec. 30-1108).

2. General specifications that court erred in making certain findings of fact and conclusions of law, but not pointing out wherein such findings were erroneous, held too indefinite for review.

3. In action to enjoin obstruction of highway, evidence that there was very little travel over any part of road, that little work was done in maintenance thereof, and that portion of road beyond gate constructed by defendants was not in condition for vehicular traffic, held to justify refusal of trial judge to find that road had been established by prescription (I. C. A., sec. 39-103).

4. In county's action to enjoin obstruction of highway, title by prescription of ten years to land other than that of original grant could not be established, since, if prescriptive right had been established prior to date of deed, such right was merged in deed where deed bore date within ten-year period.

5. In county's action to enjoin obstruction of highway abandonment of site originally granted held to constitute abandonment of site actually used and which had been little used, and which was not kept in repair (I. C. A., sec 39-401).

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action by county to enjoin the obstruction of a road. Judgment for defendants. Affirmed.

Affirmed.

J. Ward Arney and Miles F. Egbers, for Appellant.

"A highway by prescription exists by virtue of user and not on the theory of a grant or dedication." (Gross v. McNutt, 4 Idaho 286, 38 P. 935.)

"Public use of a highway for the statutory period and the keeping of it in repair at public expense establishes a highway by prescription, whether a road is recorded or not." (Meservey v. Gulliford, 14 Idaho 133, 93 P. 780.)

"It is not necessary that a highway be worked through its entire length at public expense to become a highway by prescription; it need not be worked at places where there is no necessity for work." (Gross v. McNutt, supra; State v. Berg, 28 Idaho 724, 155 P. 968.)

No appearance for Respondents.

Hawkins & Hawkins filed a brief as friend of the court.

A highway by prescription exists by virtue of public use for the statutory period of five years, together with the keeping of said road in repair at public expense. (Ross et al. v. Swearingen, 39 Idaho 35, 225 P. 1021.)

MORGAN, J. Givens, C. J., and Budge, J., concur. Holden, J., sat with the court at the hearing, but did not participate in the decision. Ailshie, J., did not sit with the court at the hearing nor participate in the decision.

OPINION

MORGAN, J.

This action was commenced by Kootenai County to enjoin Kinman and his wife from maintaining a fence and gate across a public road. Judgment was for defendants, and the county appealed.

It is alleged in the complaint, and admitted in the answer, that the county acquired from respondents' predecessor in interest a right of way for a highway across their land. The deed, dated November 25, 1924, conveying to the county a strip of land 20 feet wide on each side of a center line described therein, was introduced in evidence. Appellant refers to this as the "record road." It is also alleged in the complaint "that for over 10 years next immediately preceding the commencement of this action, the plaintiff and the public have used and have worked and kept up, at the expense of the public," a highway across the land of defendants. Appellant refers to this as the "actual road." That allegation is denied in the answer. Appellant further alleged that during 1933 respondents installed and maintained a fence and gate across the "actual road" and excluded the public from the use of a portion thereof, and will continue to do so unless restrained and enjoined from so doing. The maintenance of the fence and gate is admitted.

Respondents, in their answer, alleged that the deed executed by their predecessor was conditioned upon the performance of an obligation therein expressed that the county would construct and maintain a good and passable road over the right of way thereby conveyed, and that this has not been done. They further alleged that appellant, on March 20, 1933, by order of its board of commissioners, abandoned the right of way described in the deed.

The evidence shows that March 20, 1933, the board of county commissioners made and entered an order, which was filed for record in the office of the county recorder and recorded March 29, 1933, wherein it was recited that November 25 1924, the Idaho Lumber & Manufacturing Company granted to Kootenai County a right of way 40 feet in width across certain land, described in the order, now owned by respondents; that said right of way deed contained the following condition: "And this grant and conveyance unto the County of Kootenai is for the purpose of a good and passable public highway maintained by said county." It was recited in the order that the grantee had not complied with said condition and that said road had not been constructed or maintained, nor had it been used as a road for a period of more than five years last...