State v. Adkins

• Decision Date: 05 July 1889
• Citation: 21 P. 1069,42 Kan. 203
• Parties: THE STATE OF KANSAS v. ASAL ADKINS et al
• Court: Kansas Supreme Court

21 P. 1069

42 Kan. 203

THE STATE OF KANSAS v. ASAL ADKINS et al

Supreme Court of Kansas

July 5, 1889

Appeal from Cloud District Court.

THE opinion states the case.

Judgment affirmed.

L. J Crans, for appellants.

L. B Kellogg, attorney general, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The appellants were prosecuted for malicious trespass. They were charged with willfully and maliciously pulling down and destroying a gate and fence, not their own, which were upon the land of W. B. Williams, the prosecuting witness. The taking down and removal of the fence were admitted by the appellants, and they claimed in justification that the gate and fence were standing on and obstructing a highway, and, desiring to pass over the highway, they removed the obstruction. At the trial, which was had without a jury, at the February term, 1889, they were found guilty, and each was sentenced to pay a fine of $ 1, and the costs of the prosecution.

The only question to be determined upon this appeal is the existence of a highway at the place where the alleged trespass was committed. It is conceded that no road existed there by prescription nor through condemnation proceedings but it is claimed that one was established through the acts and acquiescence of the owners of the land and the public. There was no express dedication, and in our view the facts proven do not establish an implied dedication of a highway. To constitute a dedication there must be an intention to dedicate on the part of the owner clearly and unequivocally shown, and an acceptance by the public. In 1875 an ineffectual attempt was made to establish a statutory road along the section line, where the trespass was committed. A petition was presented to the county commissioners for the laying out of a road on November 5, 1875, and on the following day the petition was granted, without any notice, assessment of damages, or any of the steps necessary in a condemnation proceeding. It seemed to be the opinion of some of the people in that locality that a road might be opened upon the section line upon the mere presentation of a petition. It was claimed by some and disputed by others, that a road had been established, and on two different years work was done on the line under the supervision of the road overseer, it being supposed by the parties that a statutory road had been laid out. Some travel passed over the line, but as it was open...