State v. Horn

• Decision Date: 05 November 1886
• Citation: 35 Kan. 717,12 P. 148
• Parties: THE STATE OF KANSAS v. A. HORN
• Court: Kansas Supreme Court

12 P. 148

35 Kan. 717

THE STATE OF KANSAS v. A. HORN

Supreme Court of Kansas

November 5, 1886

Appeal from Leavenworth District Court.

PROSECUTION for obstructing a public road. At the April Term, 1886, the defendant Horn was found guilty, and sentenced to pay a fine of $ 50 and costs. He appeals. The material facts appear in the opinion, and in The State v. Horn, 34 Kan. 556, et seq.

Judgment reversed.

J. P Usher, for appellant.

Wm Dill, county attorney, for The State.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This case has once before been in this court. (The State v. Horn, 34 Kan. 556, 9 P. 208.) After its return to the district court, it was again tried before the court and a jury, and the defendant was again convicted, and was adjudged to pay a fine of fifty dollars and the costs of the suit. He again appeals to this court.

On the second trial, the state introduced evidence which tended to prove that A. Stephens resided at Lenape; that he had a son William, a young man, who generally signed his name "W. Stephens;" that this young man was very well known at that place; that the two owned a drug store at Osawatomie; that the son kept the drug store, though he was frequently at home at Lenape; that A. Stephens acted as one of the commissioners in locating the road, and that W. Stephens took no part therein. It will be remembered that it was W. Stephens, and not A. Stephens, who was appointed one of the commissioners. Only one of the commissioners out of the three appointed, acted in viewing and locating the road. The state then offered in evidence the records of all the proceedings had in, or having any connection with, the location or establishment of the road, and just such records as were introduced on the former trial, but the court excluded the evidence. The state then attempted to prove that the road had become a public highway by prescription, limitation, or dedication; but about the only evidence introduced which tended to show this is as follows: In April or May, 1868, William G. Harris, with a half-breed Indian, traveled along this road as an Indian trail. From this time on up to the present time the road has been more or less traveled. The land, however, over which this road ran, and the land in that vicinity, was at that time and for several years afterward open and unfenced, permitting people to travel where they pleased. On September 20, 1869, proceedings were commenced to lay out and establish a public county road in that vicinity, and on December 6, 1869, the proceedings culminated in the attempted establishment of this road as a county road, as stated in the case of The State v. Horn, supra. This road is the old Indian trail, and the road now in dispute. Some time after the supposed establishment of this road, but just when is not shown, the road was opened and improved by the road overseer, and has since been traveled, up to the present time. The land claimed to have been taken and appropriated as a public highway by the attempted establishment of this road, was not at that time fenced or occupied in any manner, nor was it or any of the land in that vicinity so fenced or occupied for several years afterward, except that the railway company operated its railway over a portion of such land, and it does not appear that the railway company has ever acknowledged or admitted that any public highway has ever been located or established over the ground over which the present road runs. The land over which the present road runs was granted to the railway company's predecessor by the act of Congress of July 1, 1862, for a right-of-way, (12 U.S. Stat. at Large, 489, et seq.;) and the road runs near to and parallel with the company's railway track. This action was commenced on August 18, 1884.

Now the question as to whet the rights of the railway company are as between it and the United States, is a question which it is wholly unnecessary to decide in this case; for the case may be decided...