State v. Teeters

• Decision Date: 08 April 1896
• Citation: 66 N.W. 754,97 Iowa 458
• Parties: STATE v. TEETERS.
• Court: Iowa Supreme Court

97 Iowa 458

66 N.W. 754

STATE

v.TEETERS.

Supreme Court of Iowa.

April 8, 1896.

Appeal from district court, Johnson county; M. J. Wade, Judge.

Indictment for obstructing a public highway. Verdict of guilty, and a judgment, from which the defendant appealed. Affirmed.Remley & Ney and J. M. Cash, for appellant.

Geo. W. Ball, S. R. Fairall, and C. S. Ranck, for the State.

GRANGER, J.

1. The highway charged to have been obstructed was established either by prescription or by dedication. There is no pretense that it was established by the statutory method of procedure. The court permitted the jury to find the fact of the existence of the highway either by prescription or by dedication, and the appellant claims that it was error for the court to submit both methods, and says the fact of the existence of the highway “should appear so clearly by one or the other of the methods that it excludes the propriety of submitting both.” It is urged that on the trial the state was bound to elect on which method of establishment it would rely. It is thought that State v. Mitchell, 58 Iowa, 567, 12 N. W. 598, supports the claim, but we do not think so. That case treats only of how highways may be established by prescription or dedication, and how the fact may be shown. In State v. Robinson, 28 Iowa, 514, the indictment charged the obstruction of a public highway, as in this case, and it is there said that the state was not confined to documentary evidence in proving the existence of a highway, but was properly allowed to show its establishment by consent and user. The case is, in terms, distinguished from State v. Snyder, 25 Iowa, 208, wherein it was charged in the indictment that the obstruction was to a “county road” (meaning one regularly established), and the evidence was limited to show the facts as charged. It is not thought that the indictment is so framed as to make it necessary to prove that the highway was established by prescription or by dedication; that is, it does not charge the establishment in either one of the ways, but it avers, generally, the obstruction of a highway. Under such an averment the fact of the existence may be shown by any competent evidence. This rule is sustained by the authorities cited, and, we think, upon reason.

2. The law of 1873 somewhat changed the rule as to proving the existence of highways by prescription by providing that the fact of adverse possession shall be proved by evidence distinct from and independent of the use, and that the party against whom the claim is made had express notice thereof. There was evidence showing travel along the line of the road in question as early as 1843, and the court gave to the jury the rules of evidence as they existed before and after the law of 1873, and permitted it. if the evidence was sufficient under the former rule, to find that the highway was established before the change in the law; and of this appellant complains, saying that the evidence did not justify it. Reliance is placed on the holding in State v. Railway Co., 45 Iowa, 139. In that case there was an attempt to establish a highway by prescription through wild and uncultivated land, and the holding is that open and notorious use of a highway through such lands does not raise a presumption of notice of the existence of the highway to the owner. In that case it is said: “His knowledge thereof must be proved, or there must be sufficient ground for the law to raise a presumption that he had information of the use to which his land was devoted.” It is also said in that case: “The fact that the owner for a long time permitted the public, under a claim of right, to use the land, authorizes the inference that such use was commenced and continued with his assent. If the highway was opened and used with the assent or acquiescence of the owner, it will be presumed that he intended to dedicate the land to the public use.” A conclusion of the case is stated in these words: “It is our opinion that the use of the land alone, if it be wild and uninclosed timber or prairie, will not raise a legal presumption of notice to the owner of the occupation of his land. We conclude, therefore, that the user alone of uninclosed and wild prairie or timber land will not support a...