Yakima County v. Conrad

• Decision Date: 21 September 1901
• Citation: 66 P. 411,26 Wash. 155
• Court: Washington Supreme Court
• Parties: YAKIMA COUNTY v. CONRAD et al.

66 P. 411

26 Wash. 155

YAKIMA COUNTY v. CONRAD et al.

Supreme Court of Washington

September 21, 1901

Appeal from superior court, Yakima county; John B. Davidson, Judge.

Action by the county of Yakima against A. P. Conrad and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Whitson & Parker, for appellants.

John J Rudkin, for respondent.

WHITE J.

This is an action by the county of Yakima to restrain the appellants from fencing up or in any manner obstructing public travel upon the line of a certain road. The road is described in the complaint, and it is alleged that for 25 years last past a public road 60 feet in width has been kept up and maintained by said county on the line of said road; that during all of said time said road has been used and traveled without interruption by the general public, and such use has been open and notorious and under a claim of right; and that during the period of 25 years the road has been worked and kept up at the expense of the public by and through the board of county commissioners of Yakima county and the road supervisors thereof. It is further alleged that in 1899 the appellants wrongfully and unlawfully obstructed said road by constructing and maintaining a fence across said road upon and along the east and south lines of section 23, township 12 N., of range 15 E., and since said time have prevented the public from using said road. The court found that for 25 years last past a public road 40 feet in width had been kept up and maintained by the county upon the line of the road set out in the plaintiff's complaint; that during all of said times said line of road has been used and traveled without interruption by the general public, and such use has been open and notorious and under a claim of right that during said period of 25 years the road has been worked and kept up at the expense of the public, by and through the county commissioners of Yakima county and the road supervisors thereof; and that the appellants wrongfully obstructed it in the manner complained of. This road was over public lands within the grant of the Northern Pacific Railroad. The title to the lands in section 23, township 12 N., of range 15 E., W. M., vested in the railroad on May 24 1884. The obstruction was placed by appellants at the east line of said section by building a fence across the road. Testimony was taken on June 18, 1900. Eglin, a witness for respondent, 'knew the road for twenty-five or twenty-eight years. It was used by the general public that long. It was always left open for public travel until this summer [1900]. Last summer there was a gate put in. That gate was at the lower end of section 23. Road work was done on the road for twenty-five or more years. The lower end of the road on section 23 was used for more than ten years, and the upper end runs exactly where it has been for twenty-five years. They have changed it around a little, but not very much,--not to exceed eighty or a hundred feet.' Rudkin, for the respondent, testified that he was familiar with the road for fifteen or twenty years. His testimony is to the effect 'that the road described in the complaint, across section 23, etc., is the same old road always used, and that it had been worked as a county road every year; that where it was obstructed it had been traveled for over fifteen years as a county road; that it has never been changed more than the distance of two wagons passing each other.' John Wetzel, for the respondent, testified 'that he had known the road for twenty years; was familiar with the way it ran across the section; that the road was not changed until last year; that it had been a road for twenty years, had been worked as such and kept in good condition, and was the main traveled road. There were some little changes in the line of the road,--about twenty-five feet.' He testified to the obstruction of the road last summer, and that then the road was moved over onto the reservation. From the testimony,...