Mosier v. Herman

• Decision Date: 18 March 1925
• Docket Number: 23038
• Citation: 202 N.W. 875,113 Neb. 318
• Parties: JOHN W. MOSIER, APPELLANT, v. A. H. HERMAN, APPELLEE
• Court: Nebraska Supreme Court

202 N.W. 875

113 Neb. 318

JOHN W. MOSIER, APPELLANT, v. A. H. HERMAN, APPELLEE

No. 23038

Supreme Court of Nebraska

March 18, 1925

APPEAL from the district court for Banner county: RALPH W. HOBART JUDGE. Reversed, with directions.

REVERSED, WITH DIRECTIONS.

R. O Canaday, C. G. Perry and B. R. Coulter, for appellant.

O. A Torgerson, contra.

Heard before MORRISSEY, C. J., ROSE, GOOD and EVANS, JJ., REDICK and SHEPHERD, District Judges.

OPINION

SHEPHERD, District Judge.

Plaintiff, Mosier, owns substantially three quarter sections of land lying on the east side of sections 22 and 27, township 19, range 53, in Banner county. His east fence stands practically on the section line dividing 22 and 27 on the west from 23 and 26 on the east. The road overseer, A. H. Herman, was proceeding to remove the fence, on the theory that it occupied a public road. Plaintiff brought this action to enjoin him. Decree was entered in the district court denying the injunction, and plaintiff appeals; assigning that the court erred, (1) in holding the proceedings of the county commissioners were sufficient to establish a road; (2) in holding that the fence was on the road established, if the road was established; and (3) in holding that the road had not been abandoned.

All that the county records show as to the proceedings of the county commissioners is stipulated as follows:

"Office of County Commissioners. * * * July 1, 1889, * * * Board met pursuant to adjournment. All members present. * * * The following consent road was established, said road commencing at the southeast corner of section fifteen, township nineteen, range fifty-three, running thence south on section line four miles."

This is not enough of itself to establish a road. It is true that, in establishing a road on a section line, neither a petition nor a record that the board found that the public good required the road is necessary. Howard v. Brown, 37 Neb. 902, 56 N.W. 713; Barry v. Deloughrey, 47 Neb. 354, 66 N.W. 410. But even in such a case there must be notice and proceedings with respect to damages. "The county board may, without petition or notice, make a preliminary order establishing a section line road, by declaring that it shall be opened; but before it can be actually opened there must be proceedings upon proper notice to ascertain damages." Barry v. Deloughrey, supra. So much appears to be jurisdictional in the absence of written consent or dedication by deed.

In the instant case the order made can be regarded as no more than a preliminary order. The burden of proof was upon the county, and consequently upon the defendant or appellee, to prove the additional proceedings necessary to really establish and open the road in question. Henry v. Ward, 49 Neb. 392, 68 N.W. 518; Van Wanning v. Deeter, 78 Neb. 284, 112 N.W. 902; Postal v. Martin, 4 Neb. Unoff. 534, 95 N.W. 8. In the first of the above cases, which contains a valuable discussion of the effect of the act of 1879 on all previous acts with respect to roads of this character, Commissioner Irvine laid down the doctrine which has been subsequently followed in this state. He said:

"Under the present law (Compiled Statutes, ch. 78; Session Laws, 1879, p. 120), all section lines are declared to be public roads, but they cannot be opened as such, nor can lands be appropriated therefor, until the steps provided by statute have been taken for opening such roads and ascertaining the damages."

We are convinced, therefore, that the proceedings of the county commissioners were not effectual, in and of themselves, to establish the public road claimed by the appellee.

It follows that, if the section line in question ever was opened and became a county road, it was by consent or dedication. It must be conceded that where the county has made an attempt to establish, however irregular, and such attempt has been followed by an opening and using of the road contemplated with the knowledge and consent of the adjoining landowners, the courts of Nebraska have been exceedingly loath to deny the existence of the road as a public road. But in no case, so far as the writer has been able to discover, has the property of a landowner been taken without compensation, unless there was an actual user for the prescriptive period. In the case of Wecker v. Dommer, 97 Neb. 728, 151 N.W. 157, Judge Sedgwick did, indeed, stress the fact that an attempt to establish a highway by prescription is greatly aided when the proper authorities have taken steps to establish such highway. But in that case...