Kring v. West

• Decision Date: 03 July 1931
• Docket Number: 29,936
• Citation: 133 Kan. 455,300 P. 1080
• Parties: J. F. KRING, Appellee, v. A. T. WEST et al., Appellants
• Court: Kansas Supreme Court

300 P. 1080

133 Kan. 455

J. F. KRING, Appellee, v. A. T. WEST et al., Appellants

No. 29,936

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HIGHWAYS--Establishment by Prescription--Evidence. The proceedings considered in an action to enjoin obstruction of a highway, and held, the evidence was sufficient to show the highway was a public highway by prescription.

Sullivan Lomax, of Cherryvale, for the appellants.

Claud J. Bryant, of Independence, for the appellee.

OPINION

BURCH J.:

The action was one to enjoin obstruction of a public highway. Plaintiff prevailed, and defendants appeal.

Lying north of Cherryvale are two parcels of land which, as the result of a survey made in 1918, are known as tract 6 and tract 7. Tract 6 is east of tract 7, which extends westward to the right of way of the Santa Fe railway. Tract 6 is owned by Kring, and tract 7 is owned by West. The two tracts are bounded on the south by a section line, along which is a section-line road. Opposite the dividing line between the two tracts, and beginning at the section-line road, is a highway extending southward to Cherryvale, known as North Carson street.

In 1884 tract 6 was platted as an addition to Cherryvale, and contained 110 lots. There is nothing in the record before the court to show whether there were streets or alleys. Two or three residences and a store building were erected on lots in the addition. The store building was on lots near the northwest corner of the tract. In 1892 Kring purchased the land, and afterwards procured vacation of the plat. Soon after Kring purchased, and in the fall of 1892, he converted the store building into a slaughterhouse, erected scales, and erected facilities for keeping and feeding stock. Ever since the slaughterhouse was established Kring has conducted a slaughterhouse business there. He also bought grain, which was delivered to him there and stored in bins and cribs.

A long time before Kring purchased there was an unimproved traveled way along the east side of tract 7, leading down to the section-line road at North Carson street. In 1893 Kring and his neighbors graded this road from the slaughterhouse down to the section line and to the Frisco depot, a few blocks west of North Carson street. The work done was donation work. The next year a grader was used on the road, and the ditches then cut are substantially in the same place as the ditches of the way in controversy. After that cinders were put on the road, and it was oiled. Since 1893 the road has been worked and kept up, so it has been a good road.

The original road was for people who bought lots in the addition. Since Kring established his slaughterhouse business the general public has used the road to take stock of various kinds and grain of various kinds to Kring, and then go out. The public has also used the scales. Kring has had a tenant on tract 6, and he has used the road, and persons would use it to go to see Kring and the tenant, and to go out.

In 1929 West purchased tract 7, and later barricaded the road. The prayer of the petition was that West be enjoined from obstructing the highway or interfering with plaintiff in the use of it as a highway. The court made a general finding that plaintiff should have judgment as prayed for in the petition, and rendered judgment accordingly.

In the opinion in the case of Shanks v. Robertson, 101 Kan. 463, 168 P. 316, the following from 37 Cyc. 21 (29 C. J. 373) was quoted and applied:

"To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner's permission, and continuously and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present a highway exists by prescription; otherwise not." (p. 465.)

It would serve no useful purpose to recite or discuss the evidence. That favorable to plaintiff, which is all that is open to present consideration, met all these tests of a highway by prescription.

Taking possession of the old road, improvement of it, subsequent work done to maintain the road, and use of it by the public all open, visible and notorious for more...