Tholl v. Koles

• Decision Date: 06 December 1902
• Docket Number: 12,803
• Citation: 65 Kan. 802,70 P. 881
• Parties: PETER THOLL et al. v. ANNA KOLES
• Court: Kansas Supreme Court

70 P. 881

65 Kan. 802

PETER THOLL et al. v. ANNA KOLES

No. 12,803

Supreme Court of Kansas

December 6, 1902

Decided July, 1902.

Error from Washington district court; HUGH ALEXANDER, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS -- Public Lands. The act of Congress of 1866, giving the right of way for the construction of highways over public lands not reserved for public use (U.S Rev. Stat. § 2477) is a present grant, and, if accepted by the legislature or the public, in an effectual manner, while the land is a part of the public domain, a highway is established.

2. HIGHWAYS -- Act of Congress of 1866. The act of Congress, operating with a statute of the state declaring section lines in a county containing public lands to be highways, constituted a dedication and acceptance of public land for a highway, so that when it passed into private ownership it was taken subject to the easement.

Neil F. Graham, and H. R. Fulton, for plaintiffs in error.

J. W. Rector, and J. R. S. Birch, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action of Anna Koles to recover damages to her land, resulting from alleged trespass and an attempt by Peter Tholl, the road overseer, and others, to open a highway claimed to have been previously established. The land in controversy was inherited by Anna Koles from her father, Joseph Koles, who entered it under the homestead law in 1874, and acquired a patent therefor in 1882. Soon after settling on the land he planted a row of trees on the east line of the tract, which was a section line, and when the trees grew to sufficient size he used them as posts upon which wires were stretched, and this constituted a fence on that side of the land.

In 1880 a petition for the opening of a section-line road on the east line of his land was presented to the board of county commissioners, and Koles, who then owned the land, was one of the petitioners. Upon this petition an order appears to have been made by the county board for the opening of the road, but it does not appear that notice of the petition for the highway was duly given, nor that viewers were ever appointed, nor notice given of the time and place when and where the viewers would meet to determine the damages and benefits sustained. About twenty years afterward, Peter Tholl, the road overseer, acting upon an order made by the township officers, proceeded in good faith to open the road, and did cut down the trees, grade and make a road forty feet wide, for a distance of one-half mile along the east side of the Koles land, one-half of which was taken from said land.

If no highway existed on the line in 1880 when the preliminary steps were taken, it would appear that the action then taken by the board of county commissioners did not affect the establishment and opening of a highway. The steps taken did not measure up with the requirements of the statute, and were so defective and insufficient as to be ineffectual. It is claimed however, that prior to that time a highway had been established by dedication and acceptance, and, that being true, the overseer and those working with him had a right to open and improve the highway, and. were not liable in damages to the owner of the land by reason of their action.

In 1866, while it was government land, and before the rights of Koles or any other settler, had attached, Congress enacted a provision that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." (U.S. Rev. Stat. § 2477.) In 1867 the legislature of Kansas declared all section lines in Washington county to be highways. (Laws 1867, ch. 67.) This act was subsequently amended so as to include other counties, but in each of them Washington county was specifically named. (Gen. Stat. 1868, ch. 89; Laws 1869, ch. 57; Laws 1871, ch. 135; Laws 1872, ch. 177.) Did the act of congress and the enactment of the Kansas legislature constitute a dedication and acceptance of highways over the public lands in Washington county? It is conceded that at the times mentioned the land in question was public land and open to settlement. No vested interest had been acquired by any one, and it remained subject to the absolute disposing power of congress.

The congressional act of 1866, as will be observed, is in language a present and absolute grant, and the Kansas enactment of 1867 is a positive and unqualified declaration establishing highways on all section lines in Washington county. The general government, in effect, made a standing proposal -- a present grant of any portion of its public land not reserved for public purposes for highways -- and the state accepted the proposal and grant by establishing highways and fixing their location over public lands in Washington county. The act of the legislature did not specifically refer to the congressional grants, nor declare in terms that it constituted an acceptance, but we cannot assume that the legislature was ignorant of the grant or unwilling to accept it in behalf of the state for highways. The law of congr...