Leach v. Manhart

• Decision Date: 28 February 1938
• Docket Number: 14075.
• Citation: 77 P.2d 652,102 Colo. 129
• Parties: LEACH v. MANHART et al.
• Court: Colorado Supreme Court

77 P.2d 652

102 Colo. 129

LEACH v. MANHART et al.

No. 14075.

Supreme Court of Colorado

February 28, 1938

Rehearing Denied April 4, 1938.

In Department.

Error to District Court, Douglas County; John M. Meikle, Judge.

Suit by Elizabeth Manhart and another against Clarence F. Leach, in which the Board of County Commissioners of Douglas County intervened, to enjoin defendant Leach from using roads through plaintiffs' lands. Judgment for plaintiffs, and defendant Leach brings error.

Reversed with directions.

Clarence F. Leach, of Denver, pro se.

Neil Horan, of Denver, for defendants in error.

J. M Taylor, of Denver, amicus curiae.

HILLIARD Justice.

A suit by Elizabeth Manhart and M. Augusta Rhodes, defendants in error, to enjoin Clarence F. Leach, plaintiff in error, from using a 'road through their properties connecting with the Perry Park Public road,' which, as said, they 'have and maintain for their private use, for the purpose of ingress and egress.' Leach, and the board of county commissioners of the county of Douglas (which intervened), claimed that the road in question was known as the 'Garber Creek' road; that it extended from the West Plum Creek highway in a general westerly direction along Garber Creek, across the Manhart and Rhodes ranches; and that it was an established public highway and used by the public continuously since the lands over which it passes were part of the public domain. Leach and the county introduced to the record another road, known as the 'Bee Rock' road which extends from the Jarre Creek highway, southward, through lands of Manhart, and connects with the Jackson Creek public highway. It is alleged that the Bee Rock road was an established public highway and that it has been used by the public continuously since the lands over which it passes were part of the public domain; moreover, that Leach and the public had used both roads for more than twenty years prior to the interruption attempted by Manhart and Rhodes, and Leach prayed that they be enjoined from interfering with his and the public's right to the use of said roads. Issues were so framed that determination as to both roads was in order.

The prime question involves two elements: (1) Whether the so-called Garber Creek and Bee Rock roads were public roads in fact; and, if so, (2) whether they had inception prior to the entry of any of the lands owned by defendants in error which are crossed by them.

That the claimed roads existed and were in general use in the sixties and early seventies of the last century was testified to by many witnesses, and field notes of the original government survey of the lands, burdened with the roads--made in 1866--refer to roads that, from the contour of the country, must have been the roads involved; and witnesses testifying as of twenty to forty years ago, told of the continued use of the roads. All physical conditions indicated that the roads were very old, well marked, confined to reasonably certain and definite lines, and the courses followed were those naturally to have been pursued by travelers over public lands. Witnesses called in opposition either were uncertain as to the early existence of the roads, or testified that they were private rather than public ways. That the roads were increasingly used by the public as the country was settled, appeared from the testimony of many, including defendant in error Manhart, who complained of the heavy traffic, mentioning in her testimony that many automobiles and other vehicles were constantly passing to and fro on the roads near her buildings. The travel to which Mrs. Manhart testified, as seems clear, was that of the public, to which plaintiff in error contributed only negligibly. The notice which Mrs. Manhart gave preparatory to closing the roads was addressed to plaintiff in error and the public, and her action in consummation of her declared purpose precipitated the controversy. What she sought, and what the judgment of the trial court accomplished, as we perceive, was the closing of roads over which the public, plaintiff in error included, was accustomed to travel, a custom seemingly enjoyed by the public for more than a half century. It is informative to record that the name Garber, attached to one of the roads, as well as to a creek in the vicinity, is a corruption of Gerber, the name of an early entryman to whom there is reference.

In relation to the entire area of land, the owners of which complain of the burden of the two roads involved, the United States Land Office records show that entry of but one portion thereof preceded their establishment, and neither road traverses that particular land. The entryman there was one Gottlieb Gerber, and he helped to create, and traveled over, the roads in question Before the burdened lands were entered. We mention that Mrs. Manhart now owns the Gerber land, the importance of which situation will appear as we proceed.

The premises considered, we think a statute of the United States enacted in 1866, Rev.St. § 2477, U.S Comp.Stat.1916, § 4919, title 43, U.S. C.A. § 932, reading as follows: 'The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted,' is controlling. We have had occasion to...