Mean v. Callison

• Decision Date: 09 May 1911
• Docket Number: Case Number: 798
• Citation: 116 P. 195,28 Okla. 737,1911 OK 173
• Parties: MEAN v. CALLISON.
• Court: Oklahoma Supreme Court

1911 OK 173

116 P. 195

28 Okla. 737

MEAN v. CALLISON.

Case Number: 798

Supreme Court of Oklahoma

Decided: May 9, 1911

Syllabus

¶0 1. HIGHWAYS--Rights and Liabilities of Abutting Owner--Negligence--Question for Jury. An owner of land abutting on a public highway intersected by a stream, which was spanned by a bridge, deflected her fence so as to connect with the wings of the bridge on both banks of the stream and, by placing a fence across the stream under the bridge, allowed her cattle to go under the bridge. In a suit in damages for injuries caused by the cattle running from under said bridge and frightening plaintiff's team so that it ran away and threw him out of his buggy as he was attempting to cross said bridge, held that defendant was the owner of the land to the middle of the highway, subject to the easement of the public, and that it was a question of fact for the jury to determine whether defendant's use of the highway was an unreasonable interference with the rights of the public therein, and, if so, whether the cattle, under the circumstances, presented an object reasonably calculated to frighten horses of ordinary gentleness.

2. NEGLIGENCE--Question for Jury. Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence, such question is properly for the jury.

Error from District Court, Kingfisher County; A. H. Huston, Judge.

Action by B. S. Mean against Nora L. Callison. Demurrer to petition sustained, and plaintiff brings error. Reversed.

Nagle & Blair, for plaintiff in error.

D. K. Cunningham, for defendant in error.

TURNER, C. J.

¶1 On October 2, 1906, B. S. Mean, plaintiff in error, sued Nora L. Callison, defendant in error, in the district court of Kingfisher county in damages for personal injuries alleged to have been caused by defendant's negligence. The proof in support of the allegations of the petition shows that on June 8, 1906, defendant was the owner of a certain tract of land situate in said county; that the south boundary thereof abutted on a public highway; that across this highway ran a creek; that as part of said highway and about in the middle of it, the proper authorities had constructed a bridge at an elevation of some 12 feet above the bed of said stream; that prior to the injury complained of defendant had deflected her south line of fence so as to connect with the approaches of said bridge on both banks of the creek, and by running her wire across the creek under the bridge permitted her cattle, pasturing in the adjoining enclosure, to get under said bridge; and that on said day, while under the bridge and while plaintiff was driving across, they ran out from under it and so frightened his team as to cause it to run away and throw him out and injure him.

¶2 At the close of the testimony defendant demurred to the evidence, which was sustained. Plaintiff brings the case here. In sustaining the demurrer the court, in effect, held that under the facts shown defendant was acting within her rights as the owner of the fee of the highway, and hence not negligent. The case turns upon whether defendant's use of that part of the highway was or was not an unreasonable interference with the rights of the public. The rule of the common law is that a person holding lands bounded on a highway is held to own to the center thereof subject to the easement of the right of way. There is nothing in the statute changing this rule in Oklahoma Territory. Snyder's Stats. of Okla., sec. 7757, reads:

"The right of way of any public road shall be paid for by the township in which such right of way lies * * *. The county commissioners shall certify to the township board the price of such right of way * * *"--which shall be paid for.

¶3 The Organic Act, sec. 23, provides:

"There shall be reserved public highways four rods wide between each section of land in said territory, the section lines being the center of said highway, but no reduction shall be made, where cash payments are provided for, in the amount to be paid for each quarter section of land by reason of such reservation. But if the said highway shall be vacated by any competent authority, the title to the respective strips shall inure to the then owner of the tract of which it formed a part of the original survey."

"Inure" is defined by Bouvier's Law Dict. to mean: "To take or have effect; to serve to the use, benefit or advantage of a person." That is to say, when the easement is abandoned the title to the strip abandoned becomes ipso facto again coupled with the use. Under this condition the rule is well stated in Pemberton v. Dooley, 43 Mo. 176, thus:

"It is * * * well settled that the owner of the soil on the two sides of the ordinary country road is the owner likewise of the soil in the road, subject only to the right of the public use as a road. 'The public requires a right of way with the powers and privileges incident to that right, such as digging the soil, using the timber and other materials found within the limits of the road, in a reasonable manner, for the purpose of making the roads and its bridges. The former proprietor of the soil still retains the exclusive right in all the mines, quarries, springs of water, timber and earth, for every purpose incompatible with the public right of way.' Washb. on Ease. & Serv. (3rd Ed.) p. 228; Williams v. Railroad, 21 Mo. 580; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Ferrenbach v. Turner, 86 Mo. 416 at 416-419; 1 Thompson on Neg. 329."

¶4 We are therefore of opinion that at the time of the injury complained of the title of the right of way to that part of the highway thus enclosed was in plaintiff, and all that passed to the public was the easement of a right of way for the purpose of a highway. The right to use said land so enclosed was in plaintiff inferior to the right of the public; that is, she had the right to so use it so long as it did not interfere with the public use. In Snively v. Washington Twp., 218 Pa. 249, 67 A. 465, plaintiff owned lands on...