Lovelace v. Hightower.

• Decision Date: 01 May 1946
• Docket Number: No. 4885.,4885.
• Citation: 168 P.2d 864,50 N.M. 50
• Parties: LOVELACEv.HIGHTOWER.
• Court: New Mexico Supreme Court

50 N.M. 50

168 P.2d 864

LOVELACE

v.HIGHTOWER.

No. 4885.

Supreme Court of New Mexico.

May 1, 1946.

Appeal from District Court, Lincoln County; Numa C. Frenger, Judge.

Action by W. R. Lovelace against Bryan Hightower to enjoin defendant from interfering with plaintiff's use of an allegedly public road across defendant's land. Judgment for defendants, and plaintiff appeals.

Judgment affirmed in part and in part reversed and cause remanded with directions.

Where judgment was reversed for error in holding that ten years' user by public was necessary to effect acceptance of offer to dedicate right of way for highways over public lands and trial judge had died in the meantime, cause must be remanded for new trial and not for new findings. 43 U.S.C.A. § 932.

[168 P.2d 865 , 50 N.M. 52]

George A. Shipley, of Alamogordo, and H. Hudspeth, of Carrizozo, for appellant.

John E. Hall, of Albuquerque, for appellees.

BRICE, Justice.

Plaintiff-appellant (hereinafter referred to as plaintiff) sought to enjoin defendant-appellee (hereinafter referred to as defendant) from interfering with plaintiff's use of an alleged public road or highway across the lands of the latter. Judgment was for defendant, and this appeal followed.

Plaintiff plead, and relied upon, two causes of action. In the first he alleged the establishment of the road or highway in question by the acceptance of a federal grant by means of use by the public while the land was unappropriated public domain, by authority of 43 U.S.C.A. § 932, which provides: ‘The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.’

For his second cause of action plaintiff alleged that the road was established by prescription after the land in question was filed upon and patented by defendant's predecessor in title, through use by the public for a period of time sufficient to give a prescriptive right in the public as against the private owner. All material issues were controverted by the answer and in addition it is alleged that if a public road had in fact been established, it had since been abandoned by non-user. The passage, or line of travel, contended for by plaintiff, will be referred to as the ‘passage,’ ‘highway,’ or ‘road,’ without implying that it was in fact a prescriptive road, public or private.

The road, it is alleged, traverses the ranch and lands of defendant, which comprises some 17 or 18 sections of land in Lincoln County. It enters near the northeast portion, crossing it in a southwesterly direction, following generally along a shallow and non-precipitous depression, or drainage area, sometimes known as Largo Canyon.

The court's findings are as follows:

(1) There has not been continuous use by the public of the road in question in its entirety, nor as to any or all parts thereof as it crosses lands of defendant, for a period of ten years prior to all of the times that Homestead Entries were made as to said lands; and this applies whether homestead entries as to the lands patented in 1923, above described, were made three or five years prior to the issuance of patents thereto.

(2) For the period of ten years subsequent to the time when all of defendant's lands came into private ownership under patents there has not been, by the public, continuous, open, uninterrupted, peaceable, notorious nor adverse, use of the road in question in its entirety, nor as to any or all parts thereof as it crosses the lands of the defendant, nor with the knowledge of defendant or of former owners; and this applies if it can be said that the period of prescription as to patented lands starts as of the time of homestead entries (though the court does not so hold in law).

Then follow the court's conclusions of law, to-wit:

(1) One method of accepting a grant for a public road on the public domain under Section 2477, Rev.St. of U.S., 43 U.S.C.A. § 932, is by continuous use thereof by the public; and the required length of time of such use is ten years in New Mexico.

(2) When homesteads are made on lands of the public domain the lands covered by such homesteads cease to be public domain, such that after the time that a homestead entry has been duly made any use of the road by the public over lands included in such entry is ineffectual to constitute a grant under said United States Statute.

(3) What is necessary and essential to establish a public road by prescription is such as is set out under Finding of Fact No. 2 above.

(4) As to other matters heretofore set out as matters of law, the court makes them as its conclusions of law.

(5) The court concludes that plaintiff's relief prayed for should be denied and that his action herein should be dismissed.

The word ‘highway’ as ordinarily used means a way over land open to the use of the general public without unreasonable distinction or discrimination, established in a mode provided by the laws of the state where located. Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207. In New Mexico highways are defined as follows: ‘All roads and highways, except private roads, established in pursuance of any law of New Mexico, and roads dedicated to public use, that have not been vacated or abandoned, and such other roads as are recognized and maintained by the corporate authorities of any county in New Mexico, are hereby declared to be public highways.’ Sec. 58-101, N.M.Sts.1941.

Highways can be established only as provided by the statute quoted (Board of County Com'rs v. Friendly Haven Ranch Co., 32 N.M. 342, 257 P. 998), unless they can be established by a prescriptive user.

The Federal statute involved is as follows: ‘The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.’

This is an offer to dedicate any unreserved public lands for the construction of highways, to become effective when accepted; Atchison, T. & S. F. R. Co. v. Richter, 20 N.M. 278, 148 P. 478, L.R.A.1916F, 969; Moulton v. Irish, 67 Mont. 504, 218 P. 1053; Bishop v. Hawley, 33 Wyo. 271, 238 P. 284; Although there is authority which holds that it is a grant in presenti, taking effect when accepted as of the date of the grant (1866), Tholl v. Koles, 65 Kan. 802, 70 P. 881; City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593. It is immaterial here which construction is correct. It is an offer to dedicate land that must be accepted to become effective under either holding. State ex rel. Shelton v. Board of Com'rs of Bernalillo County, 49 N.M. 218, 161 P.2d 212.

The only question we need consider is whether a highway can be established by dedication under the federal statute and state laws by public user for a period of time less than ten years, if at all. It is asserted that it can be established only by a user of ten years. But we are of the opinion that if in this state a highway can be established over public land by public user alone (that is, if the offer to dedicate can be accepted by the public without some action by the public authorities), the continued use of the road by the general public for such time and under such circumstances as to clearly prove an acceptance of the offer by it, the highway is established, whether the time of user is six months or fifty years. The time of user is competent evidence on the question of acceptance or non-acceptance by the public, but so is the amount and character of user, or any other evidence tending to prove or disprove acceptance.

It is a general rule that acceptance of an offered dedication of land for a highway may be established by proof of affirmative acts of taking possession by public authorities or by general use by the public, provided the use is sufficient to constitute acceptance. Wilson v. Williams, 43 N.M. 173, 87 P.2d 683; City of Cincinnati v. White's Lessee, 6 Pet. 431, 8 L.Ed. 452; Irwin v. Dixion, 9 How. 10, 11, 13 L.Ed. 25; Corning v. Aldo, 185 Wash. 570, 55 P.2d 1093; McCue v. Berge, 385 Ill. 292, 52 N.E.2d 789; City of Santa Clare v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303; Calhoon v. Pittsburgh Coal Co., 128 Pa.Super. 582, 194 A. 768; North Beach v. North Chesapeake Beach Land & Improvement Co., 172 Md. 101, 191 A. 71; La Chappelle v. Jewett City, 121 Conn. 381, 185 A. 175; City of McCook v. Red Willow County, 133 Neb. 380, 275 N.W. 396; Keiter v. Berge, 219 Minn. 374, 18 N.W.2d 35.

The Supreme Court of the United States has said that such user ‘ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment.’ City of Cincinnati v. White's Lessee, supra .

A highway may be established in New Mexico by dedication, Sec. 58-101, N.M.Sts.1941, supra, and acceptance, State ex rel. Shelton v. Board of Com'rs of Bernalillo County, supra.

No question of implied dedication is involved. The United States as a landowner has made an offer to dedicate unappropriated land for highways, if accepted as authorized by this state's law, the easement for its use as a public highway was created exactly as though the dedicator was an individual landowner. If mere public user is a sufficient acceptance of an offered dedication, the ten year statute of limitation is not remotely applicable. Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 112 A.L.R. 536, cited in support of the trial court's holding, involved a private way over private land that had never been dedicated for such use, and has no application to the facts of this case. If Mrs. Hester had offered to dedicate a way across her property for the use of Sawyers and he had accepted it by entering the land and constructing a road, the ten year statute of limitation would not have been involved.

The courts of a majority of the states which have had the question for consideration have held that the general rule applies to the offered dedications of highways under the federal statute involved here. Schwerdtle v. Placer County, 108 Cal. 589, 41 P....