Wallowa County v. Wade

• Decision Date: 22 June 1903
• Citation: 43 Or. 253,72 P. 793
• Parties: WALLOWA COUNTY v. WADE.
• Court: Oregon Supreme Court

72 P. 793

43 Or. 253

WALLOWA COUNTY v. WADE.

Supreme Court of Oregon

June 22, 1903

Appeal from Circuit Court, Wallowa County; Robert Eakin, Judge.

Suit by Wallowa county against Aaron Wade. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J.D. Slater, for appellant.

A.M Crawford, Atty. Gen., and D.W. Sheahan, for respondent.

BEAN J.

This is a suit to enjoin the defendant from obstructing a public highway running through sections 24, 25, and 36 in township 1 S., of range 44 E., W.M., in Wallowa county. All of sections 24 and 25, except one 40-acre tract, was unoccupied public land of the United States until 1901, when it was settled upon under the homestead law. The 40-acre tract was taken as a homestead in 1896. Section 36 was school land, belonging to the state, until January, 1901, when the defendant contracted for its purchase. The road in question is a part of a highway from the town of Joseph, in the southern part of the county leading north a distance of about 24 miles by and near the town of Enterprise, and was traveled by the public as early as 1880. In 1888, upon a petition of the requisite number of householders, and after notice thereof, the county court appointed viewers and a surveyor to lay out and locate a county road along the same route, who thereupon proceeded to lay out, survey, and locate the road, from the town of Joseph north, following as near as they could the then traveled road. Upon the coming in of their report, it was approved by the county court, and the road established and ordered opened. From that time the use by the public of that part of the road now in controversy was continuous and uninterrupted until 1901, when the defendant, by permission of the homestead claimants, built a fence across it near the south line of section 24, and another through the center of section 36. The purpose of this suit is to enjoin the maintenance of such fences, and the decree of the trial court being in favor of the plaintiff, defendant appeals.

That the road was used continuously by the public as a highway for more than 10 years prior to the construction of the fence by the defendant is clearly shown by the testimony. S.A. Hart who has lived near the north end of the road since 1883, and was one of the chain carriers at the time it was surveyed, in 1888, says that it was in use by the public as a road when he first knew it, and has been continuously used ever since that he and the settlers in that portion of the county have used it since 1888, supposing it to be a public highway by reason of the action of the county court; that over sections 24, 25, and 36 the travel has held to the old, original track, although there has been some slight variation; that during all this time it has been a plain, open, well-beaten track, and has been traveled by all the people that live in that section of the county; that it is the only road used by them in going to and returning from the county seat; that through sections 24, 25, and 36 the road passes through a cañon or gulch. and there is practically but one track. George S. Craig has lived in the county for 20 years. and has known the road during that time. He testifies that it has been traveled by the public continuously as a highway, and he supposed that it was a county road since 1888; that through sections 24, 25, and 36 the road runs through a cañon, and there has been but one track or roadbed used by the public and witness never noticed that it had been changed. J.B. Olmsted and others, who have known and used the road since 1883 and prior to that time, testify substantially to the same state of facts. Indeed, upon this question there is practically no controversy in the testimony. That of the defendant was directed mainly to showing that the road over the land inclosed by him had never been worked or improved by the county authorities, or under their direction, and that it had been obstructed or changed from the original survey at other places along the route. The position of the plaintiff is that, at the time the road in controversy was obstructed by the defendant, it was a public highway, and had become such by (1) establishment under the statutory proceedings; (2) dedication and acceptance; and (3) prescription and user. The objection of the defendant to the statutory proceedings is that the petition upon which they were based was insufficient to give the court jurisdiction, because it did not sufficiently describe the beginning, intermediate, or terminal points of the proposed highway. This question we shall not now stop to examine. The county court, acting upon such petition and a notice given as required by law, caused the road to be surveyed and marked out upon the ground, and this was followed by continuous user by the public for more than 13 years prior to the construction of the fence by the defendant. This is sufficient to amount to an acceptance of the grant made by Congress, and for the establishment of a highway over state land, either by dedication or prescription. Bayard v. Standard Oil Co., 38 Or. 438, 63 P. 614; Nosler v. Coos Bay R. Co., 39 Or. 331, 64 P. 644. In 1866 Congress passed an act (Act July 26, 1866, c. 262, § 8, 14 Stat. 253) providing that "the right of way for the construction of highways over public lands, not reserved for public use, is hereby granted." Rev.St.U.S. § 2477 [U.S. Comp. St.1901, p. 1567]. While the language of this act is somewhat indefinite and uncertain, it has usually been construed as a present grant of an easement over public lands for highways, and that it is not confined to technical public highways, but is applicable to railways and tollroads. Flint, etc., Ry. Co. v. Gordon, 41 Mich. 420, 2 N.W. 648; Wason Toll Road Co. v. Townsite of Creede, 21 Land Dec. 351; Pasadena, etc., Tollroad Co. v. Schneider, 31 Land Dec. 405. "The object of the grant," say the Supreme Court of South Dakota, "was to enable the citizens and residents of the states and territories where public lands belonging to the United States were situated to build and construct such highways across the public domain as the exigencies of their localities might require, without making themselves liable as trespassers. And when the location of the highways and roads was made by competent authority or by public use, the dedication took effect by relation as of the date of the act; the act having the same operation upon the lines of the road as if specifically described in it." Wells v. Pennington County (S.D.) 48 N.W. 305, 39 Am.St.Rep. 758. The act of Congress is more than a mere general offer to the public, being in effect a...