State ex rel. Draper v. Freese

• Decision Date: 10 April 1946
• Docket Number: 32049.
• Citation: 22 N.W.2d 556,147 Neb. 147
• Parties: STATE ex rel. DRAPER et al. v. FREESE et al.
• Court: Nebraska Supreme Court

22 N.W.2d 556

147 Neb. 147

STATE ex rel. DRAPER et al. v. FREESE et al.

No. 32049.

Supreme Court of Nebraska

April 10, 1946

Syllabus by the Court.

1. Where a public road has been established by proceedings under the statute and opened and traveled by the public for more than ten years, the public thereby acquires an easement therein and the court will not examine the original proceedings for the laying out of the road and determine whether or not they were valid.

2. If the public has acquired no right by prescription or dedication to a way across the land of an individual, the court may examine the proceedings by which it was attempted to lay out a highway across the same, to ascertain whether or not the county board had jurisdiction to act, and the lapse of time alone will not supply a jurisdictional defect in the proceedings.

3. When an affidavit of posting is a permitted method of proof it is sufficient if it states the notices were posted in the manner required by the statute. If the statute requires the notices to be posted in public places it is not necessary to specify the place.

4. Mandamus is a proper remedy to compel the performance of a statutory duty to open and work established roads.

5. It is not essential that a public road be laid out upon the exact line prayed for in the petition, and slight variations in order to procure a more practicable route are permissible.

J. A. Hayward and Homer L. Kyle, both of Lincoln, for appellants.

E. A. Wunder Frank M. Rain, and A. J. Denney, all of Fairbury, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

WENKE Justice.

Franics E. Draper, Eleanor Hyland, and Mary Ryan, as relators, brought this action in the district court for Jefferson County against Henry Freese, Fred Deffer, and Samuel C. Hutchinson, the County Commissioners of Jefferson County, as respondents.

The purpose of the action is set forth in the prayer of the relator's petition as follows: '* * * that an alternative writ of mandamus be issued herein requiring that the respondents reopen and repair said public highway between Section Twelve in Township One, Range Two and Section Seven, Township One, Range Three in Jefferson County, Nebraska, and running along the section line dividing said two sections; that they erect a suitable bridge across the channel of Rose Creek at the point where it intersects said section line; that they be required to keep and maintain said highway open and in proper repair for use and travel by the public, as required by law, * * * and for such other, further, and different relief as justice and equity may require.'

From an order denying the writ and dismissing their petition, after motion for new trial had been overruled, the relators appeal.

In this opinion the parties will be referred to as the relators and respondents.

In July 1875, a petition was filed with the county commissioners of Jefferson County to establish a road located in said county described as follows: '* * * commencing at A point on the Kansas line Eighty (80) Roads East of Range Two (2) East Thence running North two Miles, thence West one quqrter mile to the Township line, thence North along said Township line to a point where it crosses Rose Creek, thence down the right bank of said Rose Creek where it again intersects said Township line, thence North along said line to the NorthEast corner of Town one Range Two East thence West along the Township line until it intersects Road 31.'

Thereafter the board appointed a commissioner '* * * to view, and, if in his opinion the public good requires, to locate the Road * * *.' On October 23, 1875, the commissioner appointed filed his report that the public good required the road and proceeded to lay out, mark and plat the same and for that purpose employed a surveyor whose plat and field notes were included with the report. It appears that when the road reached Rose Creek on the section line between section 12, township 1, range 2, and section 7, township 1, range 3, that because the creek meandered along the section line some deviation was made for the purpose of avoiding that condition and thereby facilitated that crossing of this creek. No part of this road has ever been vacated.

The relators are the owners of lands in section 7, township 1, range 3, and section 12, township 1, range 2, which are traversed by Rose Creek from a southwesterly to northeasterly direction thereby leaving approximately 175 acres on the north and 140 acres on the south side thereof. They inherited this land from their grandfather, Edward Ryan, who became the owner thereof in 1902.

This road, from the south section line of sections 7 and 12 to the north side of Rose Creek, where the road coming down from the north turns east toward Endicott, was never opened nor has any work ever been done thereon at public expense. However, in the beginning there was some travel by the public of a trial which crossed Rose Creek by means of a ford at a place some distance east of the section line. Later the same method of travel and crossing was at a point some distance west of the section line. This continued until about 1915 or 1916 when Edward Ryan constructed and maintained a substantial bridge across the creek at a point about 80 rods west of the section line. The public was permitted to use this bridge and made some use thereof by going through the owner's gates and across his premises. This continued until 1941 when the bridge washed out and since that time there has been no travel along this route.

The respondents seek to question the sufficiency of the proceedings establishing the road and the relators, under the facts herein established, seek to apply the following rule as announced in Lydick v. State, 61 Neb. 309, 85 N.W. 70: 'Where a public road has been established by proceedings under the statute, and opened and traveled by the public for more than 10 years, the public thereby acquires an easement therein; and the court will not examine the original proceedings for the laying out of the road, and determine whether or not they were valid.'

We think the facts of this case bring it within the case of Peterson v. Fisher, 71 Neb. 238, 98 N.W. 660, 661, wherein the court in discussing the facts said: 'The evidence in this case shows that while both east and west of the line between sections 11 and 14 the road was freely traveled by the public, yet it further shows that the main line of travel was turned aside on the east line of these sections, was diverted to the north, thence westward across section 11, thence southward, after having passed over said section to a continuation of the original line running east and west. The plaintiff testifies that he had a gate at the east line of said section, and that a few persons came through the gate, passed along between the sections, thence southward to his house, but there is no evidence that any public work was ever done upon, or that the public in general ever traveled on, the line between sections 11 and 14, and there is no evidence of travel between these sections for as long a period as 10 years. This being the case, no prescriptive right was acquired by the public as against the owners of the land in said sections; and, since the plaintiff in this case never recognized any right of the public to pass over his premises, it is apparent that, unless the original proceedings were valid, no public highway exists over the land of the plaintiff at the place in dispute. Gehris v. Fuhrman , 94 N.W. 133; Engle v. Hunt, 50 Neb. 358, 69 N.W. 970; Hill v. McGinnis , 89 N.W. 783.' Therein we held: 'If the public has acquired no right by prescription or dedication to a way across the land of an individual, the court may examine the proceedings by which it was attempted to lay out a highway across the same, to ascertain whether or not the county board had jurisdiction to act, and the lapse of time alone will not supply a jurisdictional defect in the proceedings.'

The respondents contend that under our decision in Rosenbery v. Tibke, 88 Neb. 51, 128 N.W. 647, 648, the affidavit as to where the notices were posted does not show a compliance with the statutory requirement. The pertinent part of the statute is as follows: '* * * by posting a notice on the court house door, and at three other public places in the vicinity of the road sought to be located, * * *.' Section 19, ch. 47, R.S. 1866.

In Rosenbery v. Tibke, supra, the affidavit as to where the notices were posted is as follows: 'One on the front door of the courthouse and three in the vicinity of the proposed road.' The opinion goes on to state: 'Where? On a back fence, where no one would ever see them? Were they all posted side by side or in three different places? The statute required that they be posted in three 'public places' in the vicinity of the road sought to be located.'

Here the affidavit with reference to where the notices were published is as follows: '* * * did, * * * post notices, * * * on the door...