State ex rel. King v. Mccurdy

• Decision Date: 09 April 1935
• Docket Number: Case Number: 25709
• Citation: 43 P.2d 124,1935 OK 412,171 Okla. 445
• Parties: STATE EX REL. KING v. McCURDY
• Court: Oklahoma Supreme Court

1935 OK 412

43 P.2d 124

171 Okla. 445

STATE EX REL. KING v. McCURDY

Case Number: 25709

Supreme Court of Oklahoma

Decided: April 9, 1935

Syllabus

¶0 1. HIGHWAYS - Easement by Prescription for Public Highways.

Easement by prescription for public highway may be established by occupancy and use as such for a period of at least 15 years. Sections 99, 11729, O. S. 1931.

2. SAME - Nonuser of Portion of Highway Insufficient to Constitute Abandonment.

Nonuser of portion of public highway for less than 15 years is insufficient to constitute abandonment, in absence of clear evidence of intention to abandon.

3. STATES - Estoppel not Operative Against State.

Estoppel does not operate against the state.

4. AUTOMOBILES - Filling Station Encroaching on Highway Abatable as Public Nuisance.

Filling station encroaching on public highway so that it obstructs view of travelers is a public nuisance, and may be abated as such. Sections 11489, 11490, 11499, O. S. 1931.

Appeal from District Court, Beaver County; F. Hiner Dale, Judge.

Action by the State of Oklahoma on the relation of J. Berry King, Attorney General, against William J. McCurdy. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Robert D. Crowe and R.A. Keller, for plaintiff in error.

Charles Miles, for defendant in error.

PER CURIAM.

¶1 This is an action for injunction filed in the district court of Beaver county by the state of Oklahoma on the relation of the Attorney General against William J. McCurdy to enjoin the operation of a filling station alleged to be located on a public highway, as being a nuisance. The case was submitted to a jury, and from a verdict and judgment thereon for the defendant, the state has appealed. The parties will be referred to as they appeared in the trial court.

¶2 The action was filed at the instance of the State Highway Commission, and it is alleged that a certain public highway has been established by public user for a period of over 40 years, extending south from the town of Beaver, which has been designated as a state highway and is being so maintained; that the defendant is maintaining and operating a filling station, with appurtenances, within the limits of such highway, which constitutes a nuisance, obstructing the use of said highway; that the plaintiff has no plain, speedy, and adequate remedy at law, and that such nuisance should be abated and the defendant enjoined from maintaining such filling station upon the public highway and required to remove the same therefrom.

¶3 The defendant claims that he is the owner of the title to the tract of land on which said filling station is located, and denies that the same is part of a public highway or that any easement thereon was ever acquired by the traveling public. For further defense, defendant alleges that if any part of said tract was ever used as a public highway, the same was wholly abandoned as such about the year 1925, prior to the erection of said filling station; that said tract was abandoned by consent of the county commissioners, as well as by abandonment for public travel; that he paid a valuable consideration for said tract, placed valuable improvements thereon without objection of the State Highway Department, and that the state is estopped by its actions from claiming said tract as against the defendant.

¶4 At the outset of the trial in October, 1933, counsel for both parties questioned whether it was a case for a jury, but the court impaneled a jury. It is our view that the case was one purely of equitable cognizance, and that the jury was proper in an advisory capacity only.

¶5 The only proposition urged in plaintiff's brief is that the court erred in overruling the plaintiff's motion for judgment at the conclusion of all of the testimony, and hence the sole question for our determination is whether the clear weight of the testimony entitled plaintiff to the injunctive relief prayed for, or whether there was any disputed question of fact upon which the jury might properly advise the court.

1. We have carefully examined the record in the trial court, which is far from satisfactory, and much of the testimony was vague and indefinite. We are not given the benefit of any plat, drawing or map which clearly shows the location of the alleged highway, of the tract of land claimed by the defendant, or of the filling station, with respect to the traveled highways at the point in question, although the witness W.H. Thomas was examined and cross-examined at length with reference to locations on a plat and made numerous marks and indications not appearing on the only plat in the record. However, the evidence sufficiently shows, without serious conflict, that a road some 100 feet in width, extending south from Douglas avenue in the town of Beaver, approximately bisecting the southwest quarter of section 18, township 4 north, range 24 east, and extending to the section line running east and west between sections 18 and 19, had been continuously used as a public highway for a period from 25 to 35 years before the trial, and had been maintained as such for about 15 years. This road did not extend south beyond the east and west section line, but was used for travel between the town of Beaver and points along such section line to the east and west. It further appears in the evidence, without serious conflict, that sometime between the years 1926 and 1929, in accordance with the prevailing custom of accommodating automobile traffic, the corners at the intersection of such north and south highway with the east and west section line highway were rounded, and thereafter travelers did not use the center of the intersection in making turns; this left a triangular tract in the center of the intersection, not graded, upon which water sometimes stood, and it grew up in weeds. About the year 1929 one Brown, who owned the adjoining tract of land, proposed to build a filling station on this triangular tract, and consulted with the county commissioners with reference thereto. No record of any order vacating this tract appears to have been made by the county commissioners, but one of the then members of the board testified that he gave his verbal consent. Brown proceeded to build the filling station, and thereafter, in the year 1931, conveyed a 100-foot square tract upon which the same was located to the defendant McCurdy, who has ever since operated and maintained the same. Subsequently, the north and south highway having been designated as a U.S. Highway, the State Highway Commission proposed to extend the same south of the east and west section line, through section 19, and demanded the removal of the filling station as being an obstruction in said highway.

¶6 Under this evidence we find that an easement for a public highway approximately 100 feet wide, extending from Douglas avenue in the town of Beaver, south to the east and west section line highway between sections 18 and 19 was established by prescription, the same having been used without interruption by the traveling public for more than 15 years. Title by prescription is recognized by O. S. 1931, section 11729, as follows:

"Title by Prescription: Occupancy for the period prescribed by Civil Procedure, or any law of this state as sufficient to bar an action for the recovery of the property, confers a title thereto, denominated a title by prescription, which is sufficient against all."

¶7 While this statute does not appear to have heretofore been applied by this court to easements for public highways, it is generally recognized in other jurisdictions that an easement for highway purposes may be so created.

¶8 Dillon, Municipal Corporations (4th Ed.) p. 753, par. 637:

"Such intent (to dedicate) will be presumed against the owner where it appears that the easement in the street or property has been used and enjoyed by the public for a period corresponding with the statutory limitation of real actions. * * *"

¶9 29 C. J. 373:

"To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner's permission, and continuously, and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present, a highway exists by prescription; otherwise not."

Elliott, Roads and Streets, page 123:

"What the original intention of the landowner was ceases to be of importance after the lapse of the limitation prescribed by the statute. Twenty years use by the public, under claim of right evidenced by use, will give a right to the road or street, no matter what may have been the owner's intention." Reed v. Northfield, 13 Pick. (Mass.) 94; Wilson v. Pioneer Coal Co. (Ky.) 231 S.W. 37.

¶10 Since, under O. S. 1931, section 99, actions for recovery of real property are barred after 15 years, the evidence in this case clearly established that an easement for a public highway has been created as claimed by the plaintiff.

2. This disposes of the first contention of the defendant. It is next claimed that even if such highway easement was created, the portion thereof upon which defendant's filling station is located was abandoned following the rounding of the corners of such highway. While, as heretofore observed, the evidence is uncertain as to the size and exact location of this triangular tract occupied by the filling station, it appears that, excluding 33 feet within the boundaries of the east and west section line highway, the base of the triangular tract is along the north boundary of such highway and the apex of the triangle is some 67 feet north, bisecting the center of the 100-foot north and south highway, with one roadway turning to the southeast and another to the southwest into the section line highway.

¶11 It is contended that this portion of the road was abandoned by the...