[Copyrighted Material Omitted]
Error
from Linn District Court.
ON May
31, 1881, Ed. R. Smith filed the following petition in the
district court of Linn county, omitting court and title:
"Plaintiff
for a cause of action against defendant, says that he resides
upon, is in possession, cultivates and is the owner of the
following lands and tenements in Linn county, Kansas, to wit
The west half of the northeast quarter of section 14 and the
west half of the southeast quarter of section 11, all in
township 22, range 23; that he occupies and cultivates said
land as a farm, and it is the homestead of himself and
family; that he has so occupied and owned said land for a
number of years last past; that running through said land
east and west is a public highway, which public highway
commences two or three miles west of said land and runs in an
easterly direction through other lands west of said land and
enters said land about thirty rods south of the northwest
corner of the northwest quarter of said northeast quarter of
section 14, and thence runs east nearly parallel with the
north line of said section, through said west half of the
northeast quarter of section 14, and then in the same
direction east through the east half of said northeast
quarter of section 14, and through, in the same direction
the northwest quarter of section 13 in said township and
range, and thence in an easterly direction to Mound City, in
Linn county, Kansas.
"Plaintiff
further says that said highway has been used by the public
and by defendant in passing and repassing thereon, as a
public highway continuously from 1859 until it was obstructed
in March, 1881, by said defendant as hereinafter more fully
set forth; that in 1859 a road was viewed by the supervisors
of Mound City township in said county, across said lands near
to and over the same road, which survey was duly recorded in
the township records of said township, and that ever since
said survey said road has been used by the people of Linn
county, Kansas, as a public highway, with the consent and
assent of defendant; that defendant has resided upon a farm
of which the said east half of the northeast quarter, section
14, is a part, the other part being the east half of the
southeast quarter, section 11, township 22, range 23, ever
since said survey was made, and has recognized and used said
road as a public highway ever since; that he has built a
fence on both sides of said road where the same crosses the
said east half of the northeast quarter of said section 14,
and has, as overseer of the public highways in the road
district in which said road is located, repaired said road,
built culverts and bridges thereon, and kept the same in
repair as a public highway.
"Plaintiff
further says that he has used said road as a public highway
in passing to and from Mound City, the county seat of said
county, the trading-point, milling-place and post office of
plaintiff, from his said farm continuously for the last 24
years; that during that time he has used no other road than
the said road across the defendant's said land in going
to and returning from Mound City from his said farm; that
across his own land he has built fences on each side of said
road, and has built his dwelling house, stables, out-houses,
pens and fields with reference to said road, and adjacent and
handy to the same; that in going to the railroad station he
has passed over said road continuously, and he has no other
eastern outlet from his house and farm than over said road.
"Plaintiff
further says that said defendant has built his houses,
out-houses, planted his orchard, constructed his fields on
his farm--being the said E. 1/2 of S.E. 1/4, section 11, and
the E. 1/2 of N.E. 1/4 of said section 14, town 22, range
23--adjacent to and convenient to said road.
"Plaintiff
further says that on or about the 20th day of March, 1881,
said defendant did willfully obstruct said road by placing
posts firmly in the ground on said road, and attaching three
strands of barbed wire firmly to said posts across said road,
and by placing brush and timbers in said road; that said
obstructions are and were placed on and across said road by
defendant on the said day, and at the point on said road
where it enters upon the said east half of the northeast
quarter of said section 14, and like obstructions where said
road crosses the east line of said land; that defendant has
been frequently requested by plaintiff, and others who use
said road, to remove said obstructions, but that he refuses
to remove the same, or any part thereof, and still maintains
the same, and has kept the same in and across said road since
the 20th day of March, 1881; and that by reason thereof
plaintiff has been wholly deprived of the use of said road
since said date, to his damage in the sum of five hundred
dollars; that he has been compelled to go three miles around
because of said obstructions in going to and returning from
Mound City, and in going to and returning from the railroad
station, and that his family, and each member thereof, has
been compelled to go a like distance in making the same
travel; and that said obstructions greatly inconvenience and
damage plaintiff in the use and enjoyment of his said farm
and homestead to his damage as aforesaid.
"Wherefore,
plaintiff demands judgment against defendant for the sum of
five hundred dollars; that said highway be adjudged a legal
highway, and that the same may be opened to the public for
public travel, for other relief, and costs."
On June
27, 1881, S.W. Smith, the defendant, filed his demurrer to
the petition, alleging that sufficient facts were not stated
therein to constitute a cause of action, and also alleging
that the plaintiff had no legal capacity to sue. On July 20,
1881, the demurrer was argued and overruled. On September 7,
1881, the defendant filed his answer, admitting therein
himself to be the owner and in the possession of the east
half of the southeast quarter of section 11 and the east half
of the northeast quarter of section 14, in township 22, of
range 23, in said Linn county, but denying all other
allegations in the petition. The action was continued from
time to time, to the November Term of court for 1882, when
the same came on for trial before the court, with a jury. The
court instructed the jury as follows:
"The
plaintiff claims in this action that in 1881 there was a
public road running through the land described in his
petition, which land is owned by the plaintiff and defendant
and that at the point where such road enters and leaves the
land of defendant, said defendant put a barbed-wire fence
across it and obstructed the travel thereon, to the damage of
this plaintiff five hundred dollars. Your first inquiry will
be naturally, Was the route of travel over and through these
lands of the plaintiff and defendant as described in the
petition a public road? To answer this inquiry, I give you
the following rules for your information and instruction:
"1.
A public road may be established by condemnation proceedings
under the statute of the state, with which proceedings to lay
out a road most of you are familiar; but under the rule in
this case, I instruct you that the evidence introduced on
that subject regarding the view and survey of a road will not
warrant you in finding that this route became a public road.
"2.
A public road may be established by 'use;' that is to
say, where the public use and enjoyment of a particular way
has continued for a period of fifteen years, and such use has
been with the knowledge, assent or acquiescence of the owner
or owners of the land, such way may become a public road.
Persons in the possession and occupancy of land, claiming
homestead or preemption rights therein under the general
government, and afterward obtaining the title thereto from
the government, can be said to be owners of land, so as to
assent and acquiesce in the use of a portion thereof as a
public highway. If, therefore, you should believe from the
evidence that this way, if there is any, over the lands of
plaintiff and defendant, had been used continuously for
public travel and public use, with the knowledge, assent or
acquiescence of the owners of said land for fifteen years
previous to the time it is alleged defendant obstructed the
same, then you will be authorized to find that it is a public
road; and in considering these matters, you may take into
account, so far as the evidence satisfactorily shows you, if
at all, the location of the improvements upon the lands of
plaintiff and defendant with reference to this way; the
manner of the use of this way by the public, and by public
road overseers; the work done upon the way, and the manner of
use of the same by the adjoining land-owners. There is no
dispute but that the defendant placed the obstructions at the
places mentioned in the evidence; so that if you should find
under the above instructions that this way was a public road
then you will ascertain what damage, if any, plaintiff has
suffered by reason of such obstructions. I do not understand,
under the evidence in the case, that plaintiff claims
anything but nominal damages. By this is meant damages for a
nominal amount, such as for one cent, or one dollar. To
entitle plaintiff to nominal damages you should be satisfied
from the evidence that the defendant obstructing such road
caused the plaintiff additional travel or inconvenience or
loss of time going from his residence to Mound City, or other
places where his business or pleasure called him. If you
should so find, plaintiff would be entitled to nominal
damages. Should you not find under these instructions that
this way across the lands of plaintiff...
