Streeter v. Stalnaker

• Court: Supreme Court of Nebraska
• Writing for the Court: SULLIVAN
• Citation: 85 N.W. 47,61 Neb. 205
• Decision Date: 23 January 1901
• Parties: STREETER v. STALNAKER.

61 Neb. 205
85 N.W. 47

STREETER
v.
STALNAKER.

Supreme Court of Nebraska.

Jan. 23, 1901.

Syllabus by the Court.

1. Under the provisions of section 2477, Rev. St. U. S., lands of the general government, not reserved for public purposes, may be taken and used for public roads.

2. Evidence of long-continued use by the public tends to show the establishment of a road by dedication over the public domain. So, also, does the surveying, marking out, platting, and improvement of a road by the public authorities.

3. Evidence examined, and found to support the judgment.

Appeal from district court, Hamilton county; Sedgwick, Judge.

Action by William H. Streeter against John Stalnaker. Judgment for defendant, and plaintiff appeals. Affirmed.

[85 N.W. 47]

Hainer & Smith, for appellant.

John A. Whitmore, J. M. Day, and John J. Roach, for appellee.

SULLIVAN, J.

The only controverted question in this case is whether there exists a highway across a quarter section of land occupied and claimed by the plaintiff, William H. Streeter, by virtue of an entry made by him in 1894, under the timber culture act. John Stalnaker, who is the overseer of road district No. 51, in Hamilton county, asserts the existence of a public way over the land, and asks that the plaintiff be enjoined from obstructing it. The court decided in favor of the defendant, and, from a careful examination of the record, we are well satisfied that the decision is warranted by the proof.

In 1877 the county board of Hamilton county, in compliance with a petition presented to it, appointed J. R. Thomas a special commissioner to inquire into the expediency of establishing a road leading to the wagon bridge across the Platte river, south of Central City. Mr. Thomas employed chainmen and an axman, and proceeded to survey, plat, and mark out a road over the land now in controversy. His report was filed with the county clerk, and was accepted by the county board. Afterwards, in the same year, culverts were built by the road overseer to make the road passable; and it has been traveled ever since to some extent by people going to Central City to trade or to Hoard's ranch with grain. “The road,” in the language of one witness for the defendant, “has been traveled constantly, not all of the time by all of the people, but by a portion of the people all the time.” It is doubtless true that the travel has diverged to some extent from the line of the road as located by Thomas, but we think the evidence quite sufficient...