Town of Wells v. Sullivan
| Decision Date | 08 May 1914 |
| Docket Number | 18,496 - (72) |
| Citation | 147 N.W. 244,125 Minn. 353 |
| Parties | TOWN OF WELLS v. STEPHEN A. SULLIVAN |
| Court | Minnesota Supreme Court |
Action in the district court for Rice county to enjoin defendant from maintaining a fence and in any way interfering with the free use of a certain highway, where the same crosses his land. The case was tried before Childress, J., who denied defendant's motions to dismiss the action and for a directed verdict, and a jury which returned an affirmative answer to the question whether there was a public road along the line described in the complaint. The court made findings and ordered judgment in favor of plaintiff. From the order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.
Highway by user.
1. The evidence considered and held ample to prove a public highway established by statutory user.
Charge to jury to disregard evidence.
2. When, during a trial, objectionable evidence is received but before final submission the court perceives the error and instructs the jury to disregard such evidence, the presumption is that no prejudice resulted from its reception and if the instruction in that regard is lacking in clearness or definiteness counsel, by failing to call the court's attention thereto, waives the defect.
Appeal and error -- failure to ask instructions.
3. Error cannot be predicated upon the court's failure to instruct in respect to the character of the evidence required to prove an issue unless an instruction thereon was suggested or requested.
Anson L. Keyes, for appellant.
E. H Gipson, for respondent.
The action is to enjoin defendant from obstructing an alleged public highway where it passes through a corner of his land. The complaint is so framed, perhaps, that it alleges a public highway both by dedication and by statutory user. The answer denies the locus in quo to be a public road, admits interferences therewith and a purpose to maintain the fence which obstructs access therefrom to the main highway. On defendant's motion the question whether the road, or place in dispute, was a public highway was submitted to a jury and answered in the affirmative. The court made findings, incorporating therein the verdict, and directed a permanent injunction to issue as prayed. The defendant appeals from the order denying a new trial or judgment notwithstanding the verdict.
The road in dispute begins at a point where a legally established cartway ends, thence runs west 33 rods along the northerly boundary of defendant's land, thence southwesterly 25 rods through his land to the main thoroughfare, called the Shieldsville road. So that the road in controversy depends for 58 rods only, for its existence as a public highway, upon proof of statutory user. All witnesses whose knowledge of the locality goes back sufficiently, agree that a road has existed in the exact place where it now is for more than 30 years, and during all of the time has been traveled continually by the public. The only fact in dispute was whether, prior to the time of defendant's obstruction, the road had been worked by the public for more than six years so as to make it a public highway under section 2563, G.S. 1913 (section 1832, G.S. 1894, section 1197, R.L. 1905). The law is well settled that, in order to establish a public highway under this statute, the proof must show not only travel by the public, but also that it has been worked or kept in repair by the public for the prescribed period. The authorities on the proposition are fully cited and reviewed in Minneapolis Brewing Co. v. City of East Grand Forks, 118 Minn. 467, 136 N.W. 1103. It is not necessary that every portion of the road should be worked nor that any part should receive attention every year during the period. Miller v. Town of Corinna, 42 Minn. 391, 44 N.W. 127; Rogers v. Town of Aitkin, 77 Minn. 539, 80 N.W. 702; Hansen v. Town of Verdi, 83 Minn. 44, 85 N.W. 906. There must be definite and clear evidence that during some time more than six years prior to the time when the owner of the land asserted the right to exclude public travel, work, appropriate to keep public roads in proper condition, was done at public expense or by the public authorities. We have...
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