Lee v. Eyerly
| Decision Date | 30 December 1922 |
| Docket Number | No. 22164.,22164. |
| Citation | 109 Neb. 539,191 N.W. 699 |
| Parties | LEE v. EYERLY, OVERSEER OF ROAD DIST. NO. 15, ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where a public road has been attempted to be established by proceedings under the statute and opened and traveled by the public for more than ten years, the public thereby acquires an easement therein, and the court will not examine the original proceedings for the laying out of the road and determine whether or not they were valid. City of Beatrice v. Black, 28 Neb. 263, 44 N. W. 189, and Lydick v. State, 61 Neb. 309, 85 N. W. 70, followed and approved.
Appeal from District Court, Valley County; Paine, Judge.
Action by Henry Lee against Ford Eyerly, overseer of Road District No. 15, and others. From a decree for defendants, plaintiff appeals. Affirmed.Davis & Davis, of Ord, for appellant.
B. M. Hardenbrook and Munn & Norman, all of Ord, for appellees.
Heard before MORRISSEY, C. J., FLANSBURG, ALDRICH, and DAY, JJ., and REDICK, District Judge.
This is an action to enjoin the road overseer and board of supervisors of road district No. 15, in Valley county, from destroying gates and fences which the plaintiff had erected across a traveled road of said county, on the ground that said road had never been legally established as a public highway. The plaintiff, just prior to the commencement of the suit, had obstructed the road, and the defendants had torn them down, and this had occurred several times, resulting in the suit for the purpose of determining the rights of the parties, the plaintiff claiming that the locus in quo had never been legally laid out and established as a public highway, and the defendants that it had been so laid out and that it had been used by the public generally for a period of ten years after the county commissioners had taken steps under the statute to establish it as a highway. The case was tried before two judges in the district court, resulting in a denial of the injunction and a finding and decree for the defendants, and plaintiff appeals.
The facts as established by the evidence are substantially as follows: The road in question had been traveled more or less by the public from 1884 until August, 1887, when a petition was filed with the board of county commissioners to open and establish the same as a public highway, and pursuant to such petition a commissioner was appointed, under the statute, for the purpose of viewing the road and determining its necessity, who filed his report in affirmation October 15, 1887, that he had caused the road to be surveyed and presented a report of such survey and the field notes and plat thereof, and on January 16, 1888, the matter of the petition was considered by the board and the petition granted as prayed for, with the notation on the record of “no objections or claims for damages filed.” The road continued to be traveled by the public generally from that time forward to the present with no substantial interruptions, although it appears from the evidence that obstructions were placed across the road in the form of gates at the north and south line of plaintiff's land in 1912, but the same were left open except at times during the winter when they were closed for the purpose of confining stock, but these obstructions did not seriously interfere with the public travel until shortly before the commencement of this action, when it was sought by plaintiff to permanently close the road. The road did not follow a straight line, but angledoff in an irregular course conforming to the topography of the country, its northern terminus being a mile west of its beginning, being about three and one-half miles long. It pursued a rather irregular course through the northwest quarter of section 13, the land of the plaintiff, which he purchased about 1906. The major portion of the road passed through a rough country and along the course of what is referred to as a valley or cañon; the sides of the cañon in many places were quite precipitous and characterized by one witness as consisting of “cat steps.” The ground on either side of the road had not been cultivated to any extent until about 1902, although it appears that furrows had been plowed along the road on the top of the bank of the cañon prior to 1900, and at that time fences were built on the south of plaintiff's land up to the east side of the road, but were not continued to the west until about 1912. The land to the east of the road is good farming land, while that to the west is somewhat hilly and broken; some of the land on either side of the road had been taken up and cultivated at an early date, but the evidence does not establish that it was cultivated up to the line of the road or with any reference thereto; neither is it shown that any portion of the territory occupied by the road has ever been cultivated or plowed, except by the public authorities who did some work upon the road as early as 1890, and the adjoining farmers worked out their poll tax on this road. Whether or not the territory through which the road passed would come within the classification of “wild land” or “cultivated land” is a close question, which we do not deem it necessary to decide. Plaintiff, Mr. Lee, in answer to the question, “You knew they were traveling through there?” testifies, “I thought there was a road there until we was told there wasn't any road there”--the opinion having been imparted by an attorney who probably based his judgment upon defects in the proceedings of 1887 for the establishment of a road.
We think the evidence establishes two propositions: First, that in 1887 the proper county authorities attempted to lay out and establish the road in question as a public highway; and, second, that the road was established, substantially along the course of the survey, and has been opened and traveled by the general public continuously for a period of ten years and up to the present time.
If the case of Lydick v. State, 61 Neb. 309, 85 N. W. 70, is the law in this jurisdiction, it rules this case. The first syllabus is as follows:
“Where a public road has been established by proceedings under the statute and opened and traveled by the public for more than ten years, the public thereby acquires an easement therein, and the court will not examine the original proceedings for the laying out of the road and determine whether or not they were valid.”
That case followed City of Beatrice v. Black, 28 Neb. 263, 44 N. W. 189, and has been cited with approval in Close v. Swanson, 64 Neb. 389, 89 N. W. 1043, and Kime v. Cass County, 71 Neb. 677, 99 N. W. 546, 101 N. W. 2, 8 Ann. Cas. 853. In Close v. Swanson, supra, the court distinguished the Lydick Case, citing the syllabus above quoted, and said:
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