Kosanke v. Kopp

• Decision Date: 07 October 1953
• Docket Number: No. 7999,7999
• Citation: 74 Idaho 302,261 P.2d 815
• Parties: KOSANKE v. KOPP et al.
• Court: Idaho Supreme Court

Page 815

261 P.2d 815

74 Idaho 302

KOSANKE v. KOPP et al.

No. 7999.

Supreme Court of Idaho.

Oct. 7, 1953.

Rehearing Denied Oct. 26, 1953.

Zener & Peterson, Pocatello, Potvin & Schou, American Falls, for appellant.

O. R. Baum, R. Max Whittier and Ruby Brown, Pocatello, for respondents.

THOMAS, Justice.

Plaintiff, hereinafter referred to as appellant, brought an action against defendants, hereinafter referred to as respondents, seeking to perpetually restrain and enjoin respondents from traveling over and across lands of appellant.

Respondents contended that the two routes traveled over and across said lands, one known as the 'Sunbeam Road' and the other known as the 'Blind Springs Gulch Road', both of which go through the farming lands of appellant, are and have been public highways since the earliest days of the settlers in the county; on the other hand, appellant asserts that each road is a private way of appellant; that they have not been worked or maintained at public expense and that respondents, having no right to travel thereon, are mere trespassers.

The matter was tried before the court, without a jury, which found and decreed that each roadway was a public highway and that the public, including respondents as members of the public, has a right to travel thereon. From the judgment, this appeal was taken.

Appellant set forth 29 assignments of error, primarily directed at the insufficiency of the evidence to support the findings made, the conclusions of law drawn therefrom and the judgment entered.

We will not discuss separately or in great detail the errors assigned but will cnsider every substantial question raised in the light of the evidence adduced, the facts found and the law applicable thereto.

Numerous witnesses were called, many of them testifying at great length; an examination of the voluminous record discloses little or no conflict in the evidence, the pertinent matters being substantially as related hereinafter.

The Sunbeam Road has been used and traveled by the public since 1882 without any interference with such use and enjoyment except by appellant after he acquired the land over which it traversed. Some of the lands were acquired in 1945 and the remainder in 1947, after which appellant erected gates thereon which were removed by those using the roads. There was evidence of and the court found that this road which was reasonably well defined and marked upon the ground and its courses, substantially without change throughout the years, was used as a highway from 1882 up to the time the action was commenced and that some work had been performed on parts of the road with public equipment and at public expense from time to time. Many years ago this was done by working out the poll tax. Prior to the time appellant acquired the lands over which both roads run, the use thereof by the public was in nowise interfered with and such interference as was occasioned thereafter by appellant was at all times resisted and the use thereof continued otherwise without interruption up to the time the action was instituted.

The lands which the Blind Springs Road traverses are located in Independent Highway District No. 1, Power County, Idaho; the Highway District in 1915 and 1916 obtained written easements from the then property owners for such road; these easements were recorded in the office of the County Recorder of Power County to January 18, 1917; this road has been used by the public as necessity arose therefor since the acquisition of such easements and work performed upon portions thereof with equipment of, and at the expense of, the Highway District.

The controlling question at issue under the pleadings and proof was whether the roads were private ways of the appellant or public highways.

Appellant contends that the facts found by the trial court are not supported by the evidence. While some of the findings made by the court are not material to a disposition of the primary matters in controversy, the court did specifically find, supported by substantial competent evidence, that the Sunbeam Road was rightfully used as a public highway prior to 1882 and up to the present time as necessity arose and that certain work had been performed thereon, or upon parts thereof, by the appropriate public authorities and at public expense and concluded that it has been at all times since 1882 a public highway.

As early a 1875 all roads, trails, streets and thoroughfares, used as such, were highways. Idaho Territory Laws, 1875, p. 677. Later, under the Revised Statutes of 1887, sec. 851, the legislature declared that roads laid out and recorded as highways, by order of the board of commissioners, and all roads used as such for a period of five years, are highways. Under this statute, the use of a highway for a period of five years brought the road into existence as a highway without more; it was founded on user and the lapse of time and passed at once under the control of the public authorities designated by law. Gross v. McNutt, 4 Idaho 300, 38 P. 935, 936.

Sec. 851 of the Revised Statutes of 1887 was amended in 1893, after the Sunbeam Road had been brought into existence by user for a period of time in excess of the required five years. Under the amendment, a road would not come into existence as a highway by mere user for the period of five years; additionally, it must have been worked and kept up at the the expense of the public. Laws of 1893, sec. 851, p. 12. The requisite...