Van Vranken v. Granite County

• Decision Date: 27 May 1907
• Citation: 90 P. 164,35 Mont. 427
• Parties: VAN VRANKEN v. GRANITE COUNTY et al.
• Court: Montana Supreme Court

90 P. 164

35 Mont. 427

VAN VRANKEN v. GRANITE COUNTY et al.

Supreme Court of Montana

May 27, 1907

Appeal from District Court, Granite County; Geo. B. Winston, Judge.

Action by Lucy Van Vranken against Granite county and others. From a judgment for plaintiff, and from an order denying defendants' motion for a new trial, said defendants appeal. Affirmed.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for appellants.

Wingfield L. Brown, for respondent.

BRANTLY C.J.

This action was brought to determine an adverse claim by the defendant Granite county to an interest in the S.W. 1/4 of the S.W. 1/4 of section 24, township 7 N., of range 14 W situate in said county. The plaintiff alleges that she is the owner in fee, entitled to the possession, and in possession of said land, and that the defendant county makes a pretended claim to the ownership of an easement for a public road or highway in a strip, 100 feet wide, extending through the same for about one-third of a mile; that the defendant county is not entitled to any interest therein for the said or any other purpose, by condemnation, grant, prescription appropriation, or otherwise; and that the said pretended claim casts a cloud upon her title. Judgment is demanded that it be declared without foundation. Defendants deny plaintiff's title and right of possession, and then, for further defense and for affirmative relief, allege in substance that a strip of land, 60 feet in width, extending through said premises, had for more than 40 years prior to the bringing of this action been used by the public as a road or highway; that it had been worked and improved at the expense of the public; that the right to the use of it for this purpose had become established by prescription; and that prior to bringing her action plaintiff had interfered with travel by the public by erecting thereon fences and other obstructions. Judgment is demanded for an injunction restraining the plaintiff from maintaining these obstructions. There was no reply. The trial resulted in findings and judgment for plaintiff. Defendants have appealed from the judgment and an order denying them a new trial.

1. Contention is made that the court erred in refusing to direct a nonsuit at the close of plaintiff's case. Whether or not the court erred in this regard we may not determine, for the reason that it does not appear, from any recital in the statement on motion for new trial, or in the certificate of the judge settling it, that it contains in substance all the evidence submitted at the trial. After the court refused to direct a nonsuit, the defendants introduced a great deal of evidence in support of their case, as did also the plaintiff in rebuttal. By submitting evidence in support of their case the defendants assumed the risk of supplying any deficiency in the proofs introduced by the plaintiff (Cain v. Gold Mt. Min. Co., 27 Mont. 529, 71 P. 1004); and whether they did so cannot be determined without an examination of all the evidence submitted, even if it be conceded that plaintiff had not made out a prima facie case by her own evidence. Error will not be presumed. It must be made to appear affirmatively. Robertson v. Longley, 28 Mont 128, 72 P. 423; Passavant v. Arnold, 34 Mont. 513, 87 P. 905. ...