Shafer v. Stull

• Decision Date: 06 May 1891
• Parties: SHAFER v. STULL ET AL.
• Court: Nebraska Supreme Court

32 Neb. 94

48 N.W. 882

SHAFER

v.STULL ET AL.

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

1. When a party cuts down a fence on the lands of another, and afterwards attempts to justify the act on the ground that the fence is within a public road, he must prove by a preponderance of the evidence that the fence at that point was within the limits of a legally established public highway.

2. The existence of a legal public road over the premises of a private person may be shown by user alone, but in such case user must have been with the knowledge of the owner, and have continued the length of time necessary to bar an action to recover the title to land. This rule, however, does not apply when the user is of wild, uncultivated prairie land. Graham v. Hartnett, 10 Neb. 517, 7 N. W. Rep. 280.

3. The defendants have repeatedly torn down plaintiff's fence in order to pass over his lands, and have threatened to continue to do so. Held, the plaintiff is entitled to relief in equity by injunction, in order to prevent a multiplicity of suits.

Appeal from district court, Cass county; CHAPMAN, Judge.B. S. Ramsey and C. S. Polk, for appellants.

J. B. Strode, for appellee.

NORVAL, J.

The appellee, Henry Shafer, on the 15th day of August, 1887, commenced this action in the Cass county district court, to restrain the defendants from cutting and tearing down the wire fence upon plaintiff's lands, and driving across the same with teams. It is alleged in the petition that ever since the year 1883 the plaintiff has been, and is now, the sole owner in fee-simple of the E. 1/2 of the N. E. 1/4 of section 2, in township 12 N. of range 13 E., and lot No. 2 of the N. E. 1/4 of said section, and that said real estate is inclosed with a fence, together with the tract of land lying on the east side thereof, belonging to George Fairfield. “That on or about the 1st day of April, 1887, and on divers other days between that time and the beginning of this suit, defendants wrongfully cut the three wires and destroyed a portion of the wire fence on the west side of said E 1/2 of the N. E. 1/4 of section 2, Tp. 2 north, of range 13 east, and drove across said premises with teams, and used a certain portion of said premises as a public highway, and left the fence open, so that stock would enter upon said plaintiff's premises, and injure and destroy the growing crops thereon, and leaving the same open, so the public could use the same for traveling across with teams and otherwise. The defendant Fred Stull, Sr., is the owner of the land adjoining plaintiff's said land upon the west side thereof, and that the same is not inclosed with a fence, and is not under cultivation. That defendants threaten to continue cutting said fence as aforesaid, and travel across plaintiff's said premises, and keeping the same open, and to use the same for a public highway, and, unless restrained by this court, will continue to do so, to the irreparable damage of this plaintiff. That if defendants are allowed and permitted to cut said wire fence, and to throw said fence open and keep the same open, and to travel upon and across plaintiff's said premises as aforesaid, and to continue to do so as if the same was a public highway where no public highway has been established, and thereby disturb plaintiff's possession of the said premises, the same may ripen into an easement or establishment of a public highway, to the irreparable damage of plaintiff.” The defendants, in their answer, admit plaintiff's ownership of the lands, and justify the trespass by setting up that in the year 1858 the board of county commissioners of Cass county established and opened a public highway across the real estate described in the petition, and that said road has never been vacated, but that about the month of April, 1884, the plaintiff unlawfully erected across said public road or highway a wire fence, thereby preventing the defendants and the public from the free use of said road, and has ever since continued to so obstruct and impede the travel over the same. The answer further alleges, in substance, that in the year 1859 another public road was located over and across the lands in dispute, which road intersects and was laid and located over a portion of the public road previously established, and that this road has never been vacated. For a further answer to the petition the defendants aver that the lands now owned by the plaintiff were owned by the Oreapolis Town Company in 1859, and about said date said company dedicated a portion of said lands to the public for a public highway; that the same has been used by the public as a public highway or road uninterruptedly for more than 25 years,...