Moulton v. Irish

• Decision Date: 15 June 1923
• Docket Number: 5282.
• Citation: 218 P. 1053,67 Mont. 504
• Parties: MOULTON ET AL., BOARD OF COUNTY COMMISSIONERS OF FERGUS COUNTY, v. IRISH ET AL.
• Court: Montana Supreme Court

218 P. 1053

67 Mont. 504

MOULTON ET AL., BOARD OF COUNTY COMMISSIONERS OF FERGUS COUNTY, v. IRISH ET AL.

No. 5282.

Supreme Court of Montana

June 15, 1923

Commissioners' Opinion.

Appeal from District Court, Fergus County; Rudolf Von Tobel, Judge.

Action by B. F. Moulton and others, as members of the Board of County Commissioners of Fergus County, a quasi municipal corporation of the state of Montana, and a political subdivision thereof, against Carl F. Irish and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

Ralph J. Anderson and Edward R. Baird, both of Lewistown, for appellants.

Edgar J. Baker, of Lewistown, and Frank Woody, Asst. Atty. Gen for respondents.

ROSE C.

In July, 1922, the plaintiffs, as the board of county commissioners of Fergus county, instituted this action to enjoin the defendants from closing an alleged public highway over certain lands owned by or under the control of the defendants. A temporary restraining order was issued together with an order to show cause. Thereafter the trial court, sitting without a jury, after a hearing on the merits and viewing the premises, perpetually enjoined the defendants from obstructing the road described. The complaint discloses that plaintiffs base their right to the relief sought upon the ground that for more than 10 years prior to July 1, 1895 a public highway existed and was maintained over and across the defendants' lands, and that during said period of time the same was used continuously by the public until obstructed by the defendants. It is further alleged that the use thereof is necessary to the public, and that timber cannot be conveyed from the mountains at the head of said road unless the obstructions are removed. The answer admits the obstructing of the land by the use of locked gates, denies the material allegations of the complaint, and alleges that the defendant Irish has owned the lands described for more than 15 years, and that during said time the same were inclosed by fence, and that no highway, either private or public, was ever established or maintained across said lands. The defendants' motion for a new trlai was denied. This appeal is from the judgment.

There are four assignments of error, three of which question the sufficiency of the evidence to support the judgment. That the trial court erred in making findings based on evidence received outside the record is assigned as error, but appellants fail to specify which particular finding is based on such evidence, and it does not appear that exceptions were made in the court below to such alleged defective findings, so that this specification will not be considered, being deemed waived by the appellants. This leaves, then, but one question properly presented to this court for determination: Was the evidence sufficient to warrant the trial court in holding that the road in question was a public highway created by use or prescription prior to July 1, 1895, and traveled or used by the public on said date?

The record discloses that the road involved in this action passes through a valley known as Timber Creek. On behalf of plaintiffs, the evidence introduced tends to establish the following:

W. A. Hedges testified that he first visited Timber Creek valley November 6, 1881, with a sheep outfit, and that he traveled by foot, at which time there was a trail there used by two ranchers, and that its use increased materially from 1881 to 1906. He was unable to testify, however, whether or not the road touched or passed over the land described in the complaint.

The witness Neill first arrived on Timber creek in May, 1883, at which time there was a road or trail along the creek, and he was employed to haul poles for use in the spring roundup of cattle, and in 1886 herded cattle in the vicinity, since which time the use of the road has increased. After 1887, the country being open, he did not have occasion to go over the trail very often, perhaps "once a year, twice a year, three times; not over that; maybe some years not at all," and that there is little change in the road where there is no fence, but that it has changed some. Manifestly this is not sufficient proof to establish the construction of a public highway, and that it was used as such on July 1, 1895.

A portion of the land described over which the road passed was entered November 14, 1902, by Alonzo E. Irish as a desert entry, and patented July 29, 1907. The remaining portion was entered as a desert entry by Kate E. Irish August 30, 1907, and patented in July, 1912. Prior to the time of these appropriations this land was all a part of the public domain, and highways over the same were required to be created or established pursuant to the provisions of section 2477, Rev. Stat. U.S., 8 F. Stat. Ann. p. 785 (U. S. Comp. St.§ 4919), which reads as follows:

"The right of way for the construction of highways over public lands not reserved for public uses is hereby granted."

This act merely grants a right of way for highways, and does not become operative until accepted by the public by constructing a public highway according to the provisions of the laws of the particular state in which the lands are located. State ex rel. Dansie v. Nolan, 58 Mont. 167, 191 P. 150; Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47; Town of Rolling v. Emrich, 122 Wis. 134, 99 N.W. 464.

In the instant case it is conceded by respondents that, if the road in question ever became a public highway, it was created by use or prescription only, and in determining this question it is necessary to examine our Code sections applicable. Section 1612, Rev. Codes 1921, was originally enacted in 1895 as section 2600, Political Code of 1895, and read as follows:

"All highways, roads, streets, alleys, courts, places, and bridges laid out or erected by the public, or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways."

In the case of State ex rel. Dansie v. Nolan, supra, this court construed the foregoing section, the opinion reciting:

"Prior to July 1, 1895, a public highway could have been established either by the act of the proper authorities, as provided by the statute, or by use by the public, for the period of the statute of limitations as to lands, of the exact route confined to the statutory width of a highway, later claimed to be a public highway, or by the

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