State v. Auchard

Decision Date19 December 1898
Citation55 P. 361,22 Mont. 14
PartiesSTATE v. AUCHARD.
CourtMontana Supreme Court

Appeal from district court, Lewis and Clarke county; Henry C. Smith Judge.

David Auchard was acquitted of the charge of obstructing a public highway, and the state appeals. Affirmed.

R. R Purcell, Co. Atty., and C. B. Nolan, Atty. Gen., for the State.

S. A Balliet, for respondent.

PER CURIAM.

Defendant was tried upon an information drawn under section 2726 of the Political Code, charging him with obstructing a public highway in January, 1898. At the conclusion of the evidence in behalf of the state, defendant moved that the jury be directed to find for defendant upon the ground that no legal highway had been shown to exist. The motion was, in effect granted, and the defendant discharged. The state appeals. That the court peremptorily instructed the jury to acquit instead of advising them to do so (section 2096, Pen. Code), is not assigned as error.

The questions presented upon this appeal may be disposed of in few words. The state contends that a legal highway was proved to have been laid out and established by virtue of proceedings conducted in compliance with the provisions of section 1809-1822, div. 5, Comp. St. 1887. The court below held that there had been an omission to observe the requirements of these statutes with respect to the giving of certain notices necessary to the jurisdiction of the board of commissioners. The order opening the road for travel was correct in form, but we agree with the learned judge who tried the case that, in the steps taken between the filing of the petition and the final order, there was a material departure from the mandatory provisions of section 1810, which requires notice of the place, as well as the time, where the viewers will meet to view and mark out the road, to be posted, and that proof thereof shall be made by affidavit. At the time of the trial there was not on file an affidavit showing that notice of the place of meeting was given, nor was the proof which should have been made by affidavit supplied by the production of oral testimony or otherwise, if evidence other than an affidavit might properly be received. See Carron v. Clark, 14 Mont. 301, 36 P. 178. The notice by the viewers that they will meet at a certain time and place is a sort of warning, in the nature of a summons, the office of which is to advise all persons interested of the matter in hand, to the end that they may appear before, and be heard by, the viewers.

It is further contended that the evidence made out a prima facie case of a highway by prescription. The law, doubtless, is that a highway may be established by prescription as well as by proceedings taken in conformity with legislative authority (Elliott, Roads & S. 133; 9 Am. & Eng. Enc. Law, 366); and that the adverse user by the public for the period prescribed by law as sufficient to bar an action for the recovery of the land so used will establish a title by prescription, which title must be confined to the very way claimed and traveled during the period, unless an attempt has been made to erect a highway by the proper authorities, under color of which the public had acted by using the way for the requisite period. In that event, it is clear the extent of the easement or title is to be measured by "the claim exhibited by...

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