State v. Waterman

• Decision Date: 05 February 1890
• Citation: 44 N.W. 677,79 Iowa 360
• Parties: STATE v. WATERMAN.
• Court: Iowa Supreme Court

79 Iowa 360

44 N.W. 677

STATE

v.WATERMAN.

Supreme Court of Iowa.

Feb. 5, 1890.

Appeal from district court, Clayton county; L. O. HATCH, Judge.

Defendant was indicted and tried for the crime of nuisance, alleged to have been committed by obstructing a public highway, and was acquitted. The state appeals.John Y. Stone, Atty. Gen., J. Larkin, and R. Quigley, for the State.

James O. Crosby, for appellee.

ROBINSON, J.

The course of the alleged highway in question is irregular, but its general direction is from north to south. It extends lengthwise through an 80-acre tract of land, which is owned by defendant. It is shown, and not denied, that he obstructed it by the building of a fence, but it is claimed that it was not a legally established public highway. The evidence tends to show the facts of the case to be as follows: An attempt to establish the alleged highway in the manner provided by law was made in the year 1860. A petition was presented to the county court of Clayton county for that purpose, together with proof of service of a notice that a petition would be presented. A commissioner named Brown was appointed to examine the route proposed for the highway and to act and report thereon. A report in favor of the establishment of the highway was made, and a day for the final hearing was fixed by the court. On the day so fixed, to-wit, May 7, 1860, the court ordered that the road be established according to the survey and report of the commissioner, as a public highway. From that time until the year 1886 the road in question was traveled by the public substantially on the line alleged to have been surveyed by the commissioner, and was treated by the inhabitants of the vicinity and the road supervisors as a public highway. In 1866 defendant purchased the 80-acre tract of land already referred to, and did so knowing that the road in question was claimed to be a public highway. About the year 1869 defendant employed a surveyor named Zearley to locate the road according to the commissioner's report of the survey, and at another time prior to 1874 employed a second surveyor for the same purpose. Both of those surveyors located the road substantially on the line now in question. After the surveys were made, defendant treated the road as a public highway, fenced it from his fields on each side, and spoke of it as a highway. In 1884 a highway, commencing in the road in question, was established in part over land of defendant, and he was allowed $100 as damages on that account. The value of that highway to those who wished to travel it depended in large part upon the road in question being a public highway. A short time before it was obstructed by defendant other surveys were made, which, it is claimed, show that the highway which the court attempted to establish was not on the line of that in question. It is also claimed that the proceedings for the establishmentof the highway were fatally defective. We are not asked to pass upon the sufficiency of the evidence to sustain the verdict, but to decide certain legal questions which are involved in the appeal.

1. The road in question is known as “No. 297.” The fifth paragraph of the charge is as follows: “(5) The first question for your consideration is this: Is the road in question a public highway? The record and papers introduced by the state to prove that road known as ‘No. 297’ was established by the county court of Clayton county shows that the proper steps were not taken to give the county court jurisdiction of the matter, and the order of the court, establishing the road, is therefore void, and road No. 297 is not a public highway. The record evidence, therefore, in regard to this road, can have no value, except to show the attempt to establish a road, and to explain the action of defendant and others in relation to the same.”

The record of the county court in regard to the road, from the presentation of the petition therefor up to and including the appointment of the commissioners, is as follows: “February term, 1860. At a regular session of the county court, held at Garnavillo, said county, Feb. 6, 1860, the petition of Jacob Thein and others was presented, asking the appointment of a commissioner to view and locate a road commencing at the guide-board near B. L. Mead's, running south through sections 24 and 25; thence down the Turkey river bank, terminating near John Garber's mill. Affidavit of John Thein, signed and sworn to, of posting up notices according to law, and filed with the papers. Bond executed by Jacob Thein, as the law directs. A. Brown was appointed commissioner to view the proposed road, commencing Feb. 20, 1860, and report upon the same. Commission issued Feb. 6, 1860.”

A petition and notice filed on the date of the foregoing record were introduced in evidence. The notice stated that a petition would be presented at the “February term of the county court of Clayton county, Iowa,” but did not specify the place where, nor the year in which, the presentation would be made. An affidavit by Jacob Thein, and sworn to by him before the county judge, was attached to the notice. It recited that the affiant posted “one notice on the court-house door, and three notices in three public places in Volga township, of which the annexed notice is a true copy,” but failed to state when the posting was done. The proceedings to establish the road in question were had under the provision of the Code of 1851. Section 519 of that Code required the notice to be posted four weeks previous to the presentation of the petition. The record proof of posting was not sufficient. It is contended by counsel for the state, however, that it should be presumed that there was other proof than the affidavit of Thein, competent and sufficient, which showed legal service of the notice. The cases of McCollister v. Shuey, 24 Iowa, 363; Woolsey v. Supervisors, 32 Iowa, 130; and Carr v. Fayette Co., 37 Iowa, 608,--are cited as supporting that claim. Those cases held that where the record recites that due service of the notice was made, or where the record is silent as to that, and nothing to the contrary appears, it will be presumed that proof other than that disclosed by the record, when...