Lydick v. State

• Decision Date: 06 February 1901
• Citation: 85 N.W. 70,61 Neb. 309
• Parties: LYDICK v. STATE.
• Court: Nebraska Supreme Court

61 Neb. 309

85 N.W. 70

LYDICK

v.STATE.

Supreme Court of Nebraska.

Feb. 6, 1901.

Syllabus by the Court.

1. Where a public road has been established by proceedings under the statute, and opened and traveled by the public for more than 10 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, 44 N. W. 189, 28 Neb. 263, followed.

2. Title to a part of a county road cannot be acquired by an adverse possession. Krueger v. Jenkins, 81 N. W. 844, 59 Neb. 641, followed.

3. Complaint copied in the opinion held to charge an offense under the provisions of section 107 of the Criminal Code.

4. In a prosecution for the violation of said section, the question of whether compensation to the owner has been made for the taking of real estate for a public highway cannot be inquired into.

Error to district court, Burt county; Keysor, Judge.

Jonathan Lydick was convicted of obstructing a highway, and brings error. Affirmed.

H. E. Carter, for plaintiff in error.

HOLCOMB, J.

A complaint was filed against the defendant (plaintiff in error), charging him with a violation of section 107 of the Criminal Code, providing as follows: “Any person who shall deposit any wood, stone, or other kind of materials, on any part of any lawful public road, in this state, inside of the ditches of such road, or outside of the ditches, but so near thereto as to cause the banks thereof to break into the same, or cause the accumulation of rubbish, or any kind of obstruction, shall, for every such offense, pay a fine of five dollars.” On this complaint, after trial, a verdict of guilty was found by the jury, upon which a fine of the amount stated was imposed by the court. From this judgment, by error proceedings, the case is brought here.

Many questions are argued in brief of counsel for plaintiff in error. The state has filed no brief. As we view the record, the controlling propositions which must be decisive of the case are contained in instructions Nos. 4 and 5, given by the court on its own motion, to which exceptions were taken, and the giving of which is assigned as error. The instructions are as follows: “(4) You are instructed that it is the law that, after a road has been used ten years or longer, the original legal proceedings which were had to establish it cannot be inquired into, but must be regarded as valid. If you believe from the evidence, beyond reasonable doubt, that the road in controversy had on May 2, 1899, been traveled by the public ten years or longer, and that before said ten years or longer the county commissioners of this county established said road by a legal proceeding begun for that purpose, then you are instructed that said road was on May 2, 1899, a public road, and you should so find. (5) You are also instructed that no person can gain title to any part of a public road by cultivating it or excluding the public travelers therefrom for any period of time, however long it may be. If you find from the evidence, beyond a reasonable doubt, that more than ten years before May 2, 1899, the county commissioners began legal proceedings to establish said road, and that they did establish it, and that afterwards the public used...