Van Wanning v. Deeter

• Decision Date: 17 January 1907
• Docket Number: 14,653
• Citation: 110 N.W. 703,78 Neb. 282
• Parties: JACOB J. VAN WANNING, APPELLEE, v. GEORGE W. DEETER, APPELLANT. [*]
• Court: Nebraska Supreme Court

110 N.W. 703

78 Neb. 282

JACOB J. VAN WANNING, APPELLEE, v. GEORGE W. DEETER, APPELLANT. ^[*]

No. 14,653

Supreme Court of Nebraska

January 17, 1907

APPEAL from the district court for Jefferson county: WILLIAM H KELLIGAR, JUDGE. Reversed with directions.

REVERSED.

C. H Denney, for appellant.

Heasty & Barnes, contra.

ALBERT C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

This is an appeal from a decree enjoining the appellant as road overseer from removing a fence which the appellee had commenced to build on and along that portion of a section line forming the north boundary of a quarter section of land, to which the appellee holds the title in fee. The only question in the case is whether there is a public road along that portion of the section line. If there is, the appellant, in the discharge of his official duty, had a right to remove the fence, and the decree should be reversed.

While there is no evidence that the road was ever formally established and opened by the county authorities, we think the evidence leaves no room for doubt that the road was established by dedication and acceptance. The evidence shows that the earliest settlers in that locality found the strip of land in question in common use by the public as a highway, and that such use has continued without substantial interruption ever since, until shortly before the commencement of this suit, when the appellee interrupted it by the erection of the fence in question. Prior to 1892 it appears to have been kept in condition for travel by the private efforts of those using it. In that year the public authorities put in a small culvert, and subsequently had some labor performed on it at the public expense. It was in common use as a highway when the person under whom the appellee claims title took title from the United States.

It seems to us that the case falls within the doctrine announced in Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47. There, in dealing with a similar case, the court said "In 1866 congress passed an act declaring that 'the right of way for the construction of highways over public lands not reserved for public uses is hereby granted.' U.S. Rev. St., sec. 2477. By this act the government consented that any of its lands not reserved for a public purpose might be taken and used for public roads. The statute was a standing offer of a free right of way over the public domain, and as soon as it was accepted in an appropriate manner by the agents of the public, or by the public itself, a highway was established. McRose v. Bottyer, 81 Cal. 122, 22 P. 393. What the Hamilton county authorities did was perhaps insufficient to show the establishment of a road under the general road law, but was enough, we think, to indicate an acceptance of the government's bounty, and that is...