Graham v. Hartnett

10 Neb. 517

• Court: Nebraska Supreme Court
• Decided: July 15, 1880
• Status: Published

Opinion

Lake, J.

The plaintiff in error, who was the defendant in the district court, having admitted substantially the acts constituting the alleged trespass, was bound to prove on the trial, in order to prevent' a recovery of damages, that the locus in quo was a legal public road, as claimed in his answer. This, we think, he failed most signally to do, and we are now to inquire whether this failure was, as he claims, caused by erroneous rulings of the court against him.

It appears that this portion of the plaintiff’s land, until quite recently, had never been inclosed, and was wild, uncultivated prairie; that for several years there had been along near the south line thereof a traveled way, known as the “ slough road.” It does not appear, however, that this road, as traveled, followed any specified line, or was confined within any defined limits, until after the plaintiff fenced his land early in the summer of the year 1878, when he left uninclosed, along the section line, a strip about thirty feet wide, as the adjoining proprietor on the south of him had previously done, whereby he sought to confine the travel within sixty -feet, the usual width of an ordinary county road.

As we understand them, counsel do not claim that they offered testimony adequate to prove that the requisite statutory steps to make this road, as traveled before it was thus fenced out, a legal highway, had ever been taken, but they do claim that they offered evidence, which the court rejected, from which the jury would have been justified in finding that it had become such by dedication to public use. That the public may acquire by dedication from the owner an easement in land for the purpose of travel is too well settled to be questioned, and is not questioned here. But, as was said by the supreme court of the United States in Irwin v. Dixon et. al, 9 How., 10: “ The idea of a dedication to the public of a use of land for a public road must rest on the clear assent of the owner in some way to such dedication.” Where, however, acts alone are relied on to prove it, they must be such as to clearly manifest an intention to dedicate, and the public must have acted upon them in a manner indicating an acceptance thereof. Gwynn v. Homan, 15 Ind., 201. Trickey v. Schlader, 52 Ill., 78.

But where it is sought to show the existence of a legal public road by user alone it must have been with the knowledge of the owner, and have continued the length of time necessary to bar an action 'to recover the title to land, which in this state is ten years. Manderschid v. Dubuque, 29 Ia., 73. Daniels v. R. R. Co., 35 Id., 129. This rule, however, does not apply when, as in this case, the user is of wild, uninclosed prairie land. State v. K. C. & C. R. R. Co., 45 Id., 139. Therefore, the exclusion of the proposed testimony of the witness Riley and others to show user was not error, there being no acts nor declarations by Hartnett indicating an intention on his part permanently to surrender the track or tracks as traveled to public use.

Another of the alleged errors is the exclusion from the .jury of certain records kept by the county commissioners. The first of these records recited the action of the commissioners concerning the building of a bridge and grading the approaches to it, “ so as to make a good passable road * * * * across the slough near the mouth of Pigeon creek.” The bridge, as this record discloses, was built, accepted by the commissioners, and paid for; but as to the “approaches,” nothing beyond the letting of the contract appears.

There is nothing in the evidence from which it can possibly be gathered that this bridge bore any relation to the road leading across Hartnett’s land, except the occasional use of the term “slough road,” which is also the term used in the county record. However, conceding it to have been on that thoroughfare, neither the bridge, nor the “ approaches,” nor any part thereof, were shown to have been at the point of dispute, nor indeed on any part of Hartnett’s land.

But even if the use of the traveled track at the point of dispute were necessary to the enjoyment of the bridge as intended by the commissioners, there was no evidence, either given or offered, connecting Hartnett, by word or deed, with this expenditure of public funds. This record, therefore, tended in no way to prove dedication, and was properly rejected as wholly immaterial to the issue being tried.

The other rejected record was in these words: “W. C. McBeath, Clerk. In the matter of damages allowed John Hartnett on his claim for the location of the slough road, he, the said Hartnett, agreed not to accept the amount, ten dollars, allowed him, on condition that the road be made passable for ordinary travel.”

Admitting that this refers to the same John Hart-nett whose land is now the subject of controversy— which, however, is not affirmatively shown — we fail to see any reason why he should be affected by it. It purports to be the copy of a statement to the county clerk of a fact which may or may not have been well founded. Of itself, it was not evidence against Hart-nett, nor could it be made so except by showing that he either made or authorized it. The court did not err in excluding it.

One of the assignments of error is, “ That the court erred in admitting the testimony of G. ~W. Obershotte and G. 0. Granger, offered by the said Hartnett at the said trial.” This is too indefinite to be regarded, as much of the testimony of these witnesses was admitted without objection. This point, however, is not noticed by counsel in their brief, and probably was not relied on.

The only other objection to be noticed is that made to the first instruction to the jury, which was based upon the assumption by the court that Graham had wholly failed in his attempt to justify the acts of alleged trespass admitted in his answer. The jury were told, in substance, that the only question for them to settle was the amount of damages the plaintiff had sustained in consequence of said illegal acts. In this there was no error, for the evidence, or rather the want of evidence, on the part of the defendant below fully justified this assumption.

Judgment aeeirmed.