Orr v. O'Brien

• Decision Date: 09 May 1889
• Citation: 77 Iowa 253,42 N.W. 183
• Parties: ORR v. O'BRIEN.
• Court: Iowa Supreme Court

77 Iowa 253

42 N.W. 183

ORR

v.O'BRIEN.

Supreme Court of Iowa.

May 9, 1889.

Appeal from district court, Jones county; JAMES D. GIFFIN, Judge.

Action to enjoin the obstruction of a public highway. In 1864 the public highway was established on a certain part of the line between sections 12 and 13, township 85, and thence west. The location is in timber and brush land, and the road has never been opened up or worked by the public. What travel there was had been over the adjacent open country, without reference to the established line. The plaintiff and her immediate devisees have owned and occupied the land on both sides of that part of said section line for more than 10 years prior to the bringing of this suit, and have for more than 10 years maintained a fence that inclosed that part of the section line. Recently, before the commencement of this suit, the defendant extended her fence so as to obstruct travel over the ways by which it had theretofore passed. The plaintiff is shown to have such an interest in this highway as to entitle him to maintain this suit.J. W. Jamison, for appellant.

Sheean & McCarn, for appellee.

GIVEN, C. J.

1. “Mere nonuser of an easement of this character and acquired in this manner will not operate to defeat the right. Especially is this so when there is no use of the premises adverse to the right of the public.” Davies v. Huebner, 45 Iowa, 574. The mere fact that the road was not opened or worked or traveled on the established line does not bar the public from now asserting the right to do so. In that same case it was insisted that as for more than 10 years before the commencement of the suit the owners of the adjacent lands had been in actual, open, notorious, and adverse possession of one-half in width of the road in question, without objection by the public, that that was an extinguishment of the right of the public as to that part of the road. This court held that “there are cases where the non-user has continued for such a length of time, and private rights of such a character have been acquired by long-continued adverse possession, and the consequent transfer of lands by purchase and sale, that justice demands the public should be estopped from asserting the right to open the highway. The first requisite to establish such an estoppel should be that the adverse possession should continue for more than than ten years by analogy of the statute of limitations. Then it should be shown that there was a...