Uhl v. McEndaffer, 16461

• Decision Date: 27 November 1950
• Docket Number: No. 16461,16461
• Citation: 123 Colo. 69,225 P.2d 839
• Parties: UHL v. McENDAFFER.
• Court: Colorado Supreme Court

Page 839

225 P.2d 839

123 Colo. 69

UHL v. McENDAFFER.

No. 16461.

Supreme Court of Colorado, en Banc.

Nov. 27, 1950.

Herbert E. Mann, Greeley, for plaintiff in error.

M. E. H. Smith, Karl R. Ahlborn, Greeley, for defendant in error.

HOLLAND, Justice.

This controversy involves a judgment for damages obtained by plaintiff McEndaffer against defendant Uhl for the removal of a fence on a section line between their properties.

Plaintiff owned land in section 29, the east boundary of which was the section line between sections 29 and 28. Defendant owned land in section 28 adjoining this section line. While this land was public domain, and on the 6th day of November, 1889, the board of county commissioners of Weld county passed a resolution declaring all section and township lines on the public domain of the United States, in Weld county, to be public highways. This resolution was in pursuance of a then existing statute of the United States which provided, 'The right of way for the construction of highways over public lands not reserved for public uses is hereby granted.' So far as the particular part of the section line here involved is concerned, the record discloses no further action by the board of county commissioners either to improve the same as a highway, or to vacate. The dispute here rests squarely on the question whether thirty feet of the land on each side of the section line is, or is not, a public road or highway. If it is a public road under all the circumstances, then plaintiff's action could not be maintained.

For seventeen years plaintiff was a tenant on the Dinsdale ranch lying largely in section 28 on the east side of the section line. The Dinsdale ranch changed ownership and defendant became the owner of a part of this ranch. Plaintiff acquired land in section 29 on the west and adjoining the section line in question. At the time plaintiff acquired his land, there was a fence running north and south, more or less through the middle of his land, and soon thereafter, he caused this fence to be moved east over approximately to the section line--he says some eighteen inches to three feet from the line. In the year 1948, and prior thereto, he had grazed his land and some adjoining acreage and had in April of 1948, about 150 head of cattle. It appears that defendant had some irrigated land lying east of the section line and that differences between plaintiff and defendant over water and water rights had existed for some period of time, with some court actions pending.

In April of 1948, defendant, desiring to have the road overseer run the grader over the land on the section line, which he claims is, and was, the public road or highway, was told by the road overseer that if the fence was removed, he would run a blade over the road. The defendant then removed or caused to be removed, the half mile of fence, taking the material to his home, and the road overseer did run the blade over the ground in question. Plaintiff, claiming that defendant was without right or authority to remove the fence, filed this action in damages for the value of the fence removed, in the sum of $100 and damages for loss of the use of the pasture land for grazing purposes in the sum of $400, and prayed judgment in the amount of $500. Upon trial to the court without a jury, judgment was entered on October 8, 1949 in favor of plaintiff in the amount of $90 for the wrongful removal and possession of the fence and $400 as damages for loss of pasturage. Motion for new trial was filed and denied. Defendant now brings the cause here for review by writ of error.

Defendant claims that the trial court, having found and determined that by the resolution of 1889 the board of county commissioners of Weld county had ordered certain section and township lines in Weld county, including the section line here involved 'to be the center of public highways or county roads, which roads shall be, and hereby are, declared to be roads 60 feet wide, being 30 feet on each side of said section and township lines,' then erred in holding that defendant was without right and authority to remove the fence from the section line for the purpose of having the roadway bladed; that it further erred in not finding that the fence on the section line was an obstruction on the highway; and further, in finding that the section line in question 'had never been used as a roadway by anyone, nor was there any appropriate action by the Board of County Commissioners of Weld County to effect removal of the fence for the road along said section line,' in view of plaintiff's evidence to the contrary and of plaintiff's witness, the county road overseer.

There is some conflict in the evidence as to the original ownership of the fence involved, and as to its repair and upkeep. Opposing claims are made by both parties relative thereto. There is no conflict in the evidence that the old mail carrier route ran along or close to parts of this section line. There is no denial that the original owner of the Dinsdale ranch generally used the roadway or trail used by the mail carrier, and that plaintiff, during the seventeen years he was tenant on the Dinsdale ranch, traveled along this roadway, and that defendant Uhl also had used the same roadway for about four or five years prior to this controversy. As to any recognition by the county of this section line being a public roadway, we have the testimony of plaintiff, which is as follows: '* * * They graded it off on my side of the fence in about forty-one, but the maintainer went down when he was working on the road that runs east and west and I asked him if he would grade it off for me. And he come up there and he graded the road clear to three miles north of me on the mail route, but we never asked anything of the commissioners; I just asked the maintainer and he come up and done that of his own accord.'

Plaintiff further testified on cross-examination:

'Q. When this fence was removed, did the County come in and blade it; did they make a road? A. Yes, on my side of the fence.

'Q. Did they blade the road on your side of the fence after it was removed? A. Thirty feet of it.

'Q. Was there any on Mr. Uhl's side bladed? A. I suppose they bladed it right up through the center of the section line.

'Q. Then the blading was done where the road and the property meet, is that right? A. Yes.

'Q. And they could not blade it very well, the road, with a fence on it, could they? A. No.

'Q. And they didn't go over into the land and do any blading, did they? A. Thirty feet of it.

'Q. That would be thirty feet dedicated to public highway purposes? A. When was that road dedicated to highway purposes?

'Q. On October 12, 1889. A. Well, that road wasn't used up to that time for a road.

'Q. The question I am asking, Mr. McEndaffer, is that the County stayed well within the sixty feet bladed on each side of the section line? A. I think so.

'Q. Your pasture land was not irrigated? A. No.

'Q. Was Mr. Uhl's meadow land irrigated? A. Yes.

'Q. Did he raise any hay crop off that land? A. Yes.

'Q. Did you ever see your cattle over on his land at all? A. No.

'Q. You never did? A. No.

'Q. Haven't they been over there frequently, Mr. McEndaffer? A. Not that I know of; if they did he would put them out.

'Q. How much would it cost you to build this fence back on your own side of that road Mr. McEndaffer? A. Oh, I suppose One Hundred Fifty Dollars, or such a matter.

'Q. ...