Warren v. Brown

• Decision Date: 22 December 1890
• Parties: WARREN v. BROWN ET AL.
• Court: Nebraska Supreme Court

31 Neb. 8

47 N.W. 633

WARREN

v.BROWN ET AL.

Supreme Court of Nebraska.

Dec. 22, 1890.

Syllabus by the Court.

1. A county board has no jurisdiction to establish a public road where no commissioner has been appointed to examine into and report upon its expediency, unless the written consent of all the land owners whose land is sought to be taken for that purpose is filed with the county clerk.

2. The proceedings had under a statute to create a highway should be so definite and certain that a competent surveyor could, with a record before him, point out its location.

3. To establish the existence of a highway by dedication by deed, it must appear that the grantor was the owner of the land when the dedication was made.

4. When the acts of the owner of the land are relied on to establish a dedication of land for the purposes of a public road, an acceptance of the same by the public must be proven.

Appeal from district court, Jefferson county; MORRIS, Judge.A. H. Moulton, Robert Ryan, and S. N. Lindley, for appellant.

C. B. Letton, for appellees.

NORVAL, J.

This is an appeal from the Jefferson county district court. The case was submitted on a motion to quash the bill of exceptions, and also on the merits. We will first consider the objections made to the bill of exceptions.

The first ground of the motion alleges that the bill of exceptions was not presented to the defendants until after the time limited by the court for such presentation had expired. The record discloses that the decree appealed from was rendered on the 11th day of April, 1889, and 20 days were given to prepare and serve a bill of exceptions. It does not appear when the proposed bill was served upon the defendants, but the record does show that on the 18th day of June, 1889, the defendants suggested an amendment to the proposed bill. On the day following, notice was served upon the defendants' attorney that on the 26th day of the same month the plaintiff would present the draft of the bill to the trial judge for his approval and signature. On the last-named date it was presented. The proposed amendment being agreed to, the bill was signed and allowed. The defendants having proposed an amendment to the bill of exceptions, without making an objection to its being signed by the trial judge, is a waiver of the objection that the same was not presented to the defendants or their counsel in proper time. Railroad Co. v. Redick, 14 Neb. 56, 14 N. W. Rep. 665;Cheney v. Cooper, 14 Neb. 413, 16 N. W. Rep. 433;Smith v. Kaiser, 17 Neb. 186, 22 N. W. Rep. 368.

There is another reason why the ground urged for quashing the bill cannot be sustained. There is nothing in the record to show when the term of the district court at which the decree was rendered finally adjourned. The time allowed by statute in which a bill of exceptions is to be presentedto the adverse party dates from the adjournment of the court sine die. Unless the contrary was made to appear, it will be presumed that the bill was presented in time. Nyce v. Shaffer, 20 Neb. 507, 30 N. W. Rep. 943;Wineland v. Cochran, 8 Neb. 528, 1 N. W. Rep. 576;Bank v. Bartlett, 8 Neb. 319, 1 N. W. Rep. 199.

It is also claimed that the bill of exceptions was never filed in the district court. This is not borne out by the record. Upon the back of the bill is indorsed: “Filed June 27, 1889. A. W. MATHEWS, Clerk of District Court.” There is attached a certificate of the clerk “that the foregoing is the original bill of exceptions in said cause.”

It is tinally urged “that said bill of exceptions has never been settled or signed by the judge before whom said cause was tried.” This objection is based upon the fact that the original allowance of the bill has been lost. It is conclusively shown by the affidavits of Millie Price, A. H. Moulton, and A. W. Mathews, the clerk of the district court of Jefferson county, that Judge MORRIS, who presided at the trial, settled and allowed the bill of exceptions on a separate sheet of paper, and for want of fasteners it was not securely attached to the bill; that this order, together with the bill of exceptions, was filed with the clerk of the district court, and that afterwards it became lost, and cannot be found. There was filed in this court a certificate of the clerk of the district court, showing that the bill of exceptions complete, with the allowance thereof by the judge, was filed in his office, that by some means unknown, the order of allowance became separated, and that he has made diligent and ineffectual search in his office for the same. This uncontradicted showing was sufficient to admit secondary evidence of the contents of the order of allowance. After the original allowance was lost, a copy thereof was filed with the district clerk, to which was attached the affidavit of Millie Price, to the effect that it was a full and correct copy of the original; that as the clerk of the plaintiff in the summer of 1889, she made the same, together with copies of all the pleadings, and most of the papers in the case. This copy was attached to the bill of exceptions when filed in this court. It is not even suggested that it is not a true copy of the original certificate of allowance. The loss of the original and its contents are fully established. The motion to quash the bill of exceptions must therefore be overruled.

This suit was commenced on the 5th day of July, 1887, by Marvin Warren against E. D. Brown, road overseer of road-district No. 1, in Jefferson county, to enjoin the latter from removing a certain sidewalk and fence, erected by Warren along the front of his premises, which are claimed by Brown to be within one of the public highways of said road-district, and to obstruct the travel thereon. The plaintiff insists that the fence and sidewalk do not encroach upon a public road, but are within the corporate limits of the city of Fairbury, and upon lands belonging exclusively to the plaintiff. On September 6, 1887, there was filed a petition of intervention of the county of Jefferson, Fairbury creamery, and Hervey Kanode, setting up the same defense to the plaintiff's action as that interposed by Brown, only stating the facts more fully relied upon to establish a road where the fence and sidewalk are located. On October 24, 1887, Hervey Kanode filed an affidavit of disclaimer of authority to file the petition of intervention in his behalf, and at his request the suit was dismissed as to him. On September 9, 1887, the plaintiff answered the petition of intervention. On November 30, 1887, leave was given to withdraw the petition of intervention on the part of Jefferson county, but it was never in fact withdrawn. On March 3, 1888, the plaintiff, Warren, filed a supplemental answer to the petition of intervention, and on the same day a summons was issued to the Fairbury creamery and Jefferson county, which was subsequently duly served. Upon the pleadings and evidence the district court found the issues in favor of the defendants and dismissed the petition of the plaintiff. On the 17th day of May, 1881, W. G. McDowell, J. B. McDowell, and Gertrude McDowell were the owners in fee of the W. 1/2 of the S. E. 1/4 of section 15, township 2 N., of range 2 E., in Jefferson county. The E. 1/2 of the same quarter section formed a part of the city of Fairbury. Third street of said city is 80 feet wide, runs east and west, and abuts upon the east line of the above tract, belonging to the McDowells. On the 17th day of May, 1881, the following petition was presented to the board of county commissioners of Jefferson county for the location of a road, to-wit: “To the board of Jefferson county: The undersigned ask that a public road, commencing at the west end of Third (3rd) street, in Fairbury, Nebraska, running thence west to intersect the quarter section line running north and south between the south-west quarter and the south-east quarter of section No. 15, in township 2 north, of range No. two (2) east, in said county, thence south on said line, and on the quarter section line between the north-west quarter of section twenty-two, (22,) in same township and range above mentioned, and terminating where this proposed highway intersects highway road No. 73, located on the quarter section line between the south-east quarter and the south-west quarter of section number twenty-two, (22,) in the township and range above mentioned, be established. J. V. SWITZER. W. P. FREEMAN. L. A. STEVENS. C. F. STEEL. C. S. HART. L. W. HART. WM. ALLEN. JAS. GRURLEY. EMIL LANGE. J. W. WAL LACE. W. W. WATSON.” On the 18th day of May, 1881, the board of county commissioners entered upon its records the following: “Board met pursuant to adjournment. Full board present. Parties owning lands adjacent to the proposed road commencing at west end of Third street filed consent, and road was located as asked in petition, commencing at west end of Third street, Fairbury, running west to intersect the quarter section line running north and south between the south-west quarter and the south-east quarter of section No. 15, in town 2, range 2; thence south on the quarter section line between the north-east and the northwest of section 22, in same range and town above mentioned, and terminating where it intersects road No. 73, located on the quarter section line between the south-east and south-west 22, town 2, range 2.” On the 5th day of June, 1882, the McDowells conveyed to the Fairbury creamery a tract containing about 10 acres in the south-west...