Deemer, C. J.
The controversy, is over a strip of land designated on the following plat as the “road in dispute
This plat also shows the respective tracts of land owned by the plaintiff and the defendant. Plaintiff purchased his land from one Piad, and claims that the road is eitlier a public highway or that it passed to him as a private way appur[622] tenant to the land. The defendant is the grantee or successor in interest of one W. P. Murphy, who owned the land at the time it is claimed the way was established. There is no claim that this way was ever legally established, or that there was ever any dedication thereof,to the public. Plaintiff’s right, if he has any, is based solely upon prescription or adverse user.
I- peímtsTstTCay' The claim to a public highway is without any foundation in the evidence. Not only'plaintiff’s grantor, but plaintiff himself, has so treated this road, by fencing it up at ’the south and east -sides of the tract, as to negative the thought that it is or ever was a public highway. The land owned by defendant was uninclosed by fences until about the year 1873. Before that it was used as a pasture and as woodland, and was traveled over much as such land generally is in a new and unsettled country. There was a small brickyard on it at one time, and there is a spring' near the center of the land. The elder Murphy made a road from the public highway on the north down to this brickyard, which was close to the east line of plaintiff’s land, and for the purpose of taking his stock to the spring that they might have water. Plaintiff’s , grantor continued this road down to the' vicinity of his house, which was near the center of the tract of land owned by plaintiff. Plaintiff’s grantor fenced his. east line about the year 1856, and left a gate therein near this road, whereby he could pass onto the Murphy land, and to the public highway running north between sections twenty and twenty-one. This was done with Murphy’s permission. Before that plaintiff’s grantor had many ways of getting to the highways. He went east to the highway on section 28, south to what is called the- “Skunk River Road,’" but more frequently north and northwest to the highway on section twenty-nine, which continued on through B. R. Murphy’s laud, as shown on the plat. No complaint was made when defendant’s grantor, Murphy, fenced his lands, but plaintiff or his grantor asked permission to pass through it, and he also asked permission to pmt in a gate. This was [623] granted. Afterward Mnxpliy told him he could not use the road unless he kept the gate closed. This he promised to do. The road across Murphy’s land followed no particular track, although there were some small bridges which were maintained by the parties jointly Occasionally there was some work done, to make the road passable, 'but as a rule this was done jointly, or with Murphy’s permission. Before Fiad and plaintiff fenced up their land, they did their heavy hauling over other roads, either the one running north and a little west, or the one running east and south. They themselves closed up these roads, and left the one they now insist was a private right of way, although it is conceded that they used some of the others as much or more than they did this one. Although plaintiff’s land is away from any regular highway, and he has no means of reaching his house except over some private road, the case does not call for an application of the rule of way by necessity; hence we give that proposition no, further consideration.
The truth is that, before any of these lands were fenced, there was the usual travel over the surrounding uninclosed lands to reach the highways, to procure wood and water, to haul brick, etc., ordinarily prevailing in new. and unsettled countries. Neither plaintiff nor his grantor used Murphy’s land any more than they did other tracts which surrounded them. Indeed, they did not, on account of the topography of the country, use it as much for heavy hauling. When they fenced'their lands, they closed the road to the north, and then went almost directly east for a time, until the'owner to the east closed the opening in his fence. They then went over Murphy’s land, but it was with his permission, and, after he fenced his land, on condition that they would keep the gate closed. Their rise was always permissive. Indeed, plaintiff many times declared that he had no right over Beebe’s land. As the use was permissive, it could not be adverse ; surely not so long as the use was referable to that permission. We are fully convinced that plaintiff has fenced himself in, and that whatever use he made of defendant’s land [624] .was at all times permissive. This finding is wholly based upon testimony received before the reopening of the ease after the first submission, to which we shall presently refer.. ITaving found that there is no private right of way by prescription, the case is-at an end; for even appellant’s counsel practically concede that the evidence is insufficient to justify a finding that there is a public highway over and across defendant’s land.
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Deemer, C. J.
The controversy, is over a strip of land designated on the following plat as the “road in dispute
This plat also shows the respective tracts of land owned by the plaintiff and the defendant. Plaintiff purchased his land from one Piad, and claims that the road is eitlier a public highway or that it passed to him as a private way appur[622] tenant to the land. The defendant is the grantee or successor in interest of one W. P. Murphy, who owned the land at the time it is claimed the way was established. There is no claim that this way was ever legally established, or that there was ever any dedication thereof,to the public. Plaintiff’s right, if he has any, is based solely upon prescription or adverse user.
I- peímtsTstTCay' The claim to a public highway is without any foundation in the evidence. Not only'plaintiff’s grantor, but plaintiff himself, has so treated this road, by fencing it up at ’the south and east -sides of the tract, as to negative the thought that it is or ever was a public highway. The land owned by defendant was uninclosed by fences until about the year 1873. Before that it was used as a pasture and as woodland, and was traveled over much as such land generally is in a new and unsettled country. There was a small brickyard on it at one time, and there is a spring' near the center of the land. The elder Murphy made a road from the public highway on the north down to this brickyard, which was close to the east line of plaintiff’s land, and for the purpose of taking his stock to the spring that they might have water. Plaintiff’s , grantor continued this road down to the' vicinity of his house, which was near the center of the tract of land owned by plaintiff. Plaintiff’s grantor fenced his. east line about the year 1856, and left a gate therein near this road, whereby he could pass onto the Murphy land, and to the public highway running north between sections twenty and twenty-one. This was done with Murphy’s permission. Before that plaintiff’s grantor had many ways of getting to the highways. He went east to the highway on section 28, south to what is called the- “Skunk River Road,’" but more frequently north and northwest to the highway on section twenty-nine, which continued on through B. R. Murphy’s laud, as shown on the plat. No complaint was made when defendant’s grantor, Murphy, fenced his lands, but plaintiff or his grantor asked permission to pass through it, and he also asked permission to pmt in a gate. This was [623] granted. Afterward Mnxpliy told him he could not use the road unless he kept the gate closed. This he promised to do. The road across Murphy’s land followed no particular track, although there were some small bridges which were maintained by the parties jointly Occasionally there was some work done, to make the road passable, 'but as a rule this was done jointly, or with Murphy’s permission. Before Fiad and plaintiff fenced up their land, they did their heavy hauling over other roads, either the one running north and a little west, or the one running east and south. They themselves closed up these roads, and left the one they now insist was a private right of way, although it is conceded that they used some of the others as much or more than they did this one. Although plaintiff’s land is away from any regular highway, and he has no means of reaching his house except over some private road, the case does not call for an application of the rule of way by necessity; hence we give that proposition no, further consideration.
The truth is that, before any of these lands were fenced, there was the usual travel over the surrounding uninclosed lands to reach the highways, to procure wood and water, to haul brick, etc., ordinarily prevailing in new. and unsettled countries. Neither plaintiff nor his grantor used Murphy’s land any more than they did other tracts which surrounded them. Indeed, they did not, on account of the topography of the country, use it as much for heavy hauling. When they fenced'their lands, they closed the road to the north, and then went almost directly east for a time, until the'owner to the east closed the opening in his fence. They then went over Murphy’s land, but it was with his permission, and, after he fenced his land, on condition that they would keep the gate closed. Their rise was always permissive. Indeed, plaintiff many times declared that he had no right over Beebe’s land. As the use was permissive, it could not be adverse ; surely not so long as the use was referable to that permission. We are fully convinced that plaintiff has fenced himself in, and that whatever use he made of defendant’s land [624] .was at all times permissive. This finding is wholly based upon testimony received before the reopening of the ease after the first submission, to which we shall presently refer.. ITaving found that there is no private right of way by prescription, the case is-at an end; for even appellant’s counsel practically concede that the evidence is insufficient to justify a finding that there is a public highway over and across defendant’s land.
2. reopening case: costs. [Referring now to the reopening of the case, Avhich. order is vigorously complained of by plaintiff’s counsel, we find that the case was fully submitted to the court in March of the year 1902. Thereafter the following proceedings we:re had, as disclosed by the bill of exceptions: “'At the September, 1902, term of said court, and on or about the 16th clay of September, the judge who tried said cause announced from the bench in the presence of counsel for both .parties that he had been unable to make up his mind how the case should be decided; that under the law as applied to the case, the plaintiff having given evidence tending to show the existence and use of a way as alleged, the burden rested upon the defendant to show that the use of tire way was permissive, and that, if either side or both sides could produce further testimony which would throw additional light upon the case, the court would reopen the case, and hear such further evidence, or, if the parties would consent, the court would transfer the case for retrial to another judge, who might not entertain the same doubts about it. Attorneys for both sides in open court declined to agree to transfer to ■ another judge. Counsel for plaintiff informed tire court that he had no further evidence to introduce.” Defendant thereafter took the depositions of some witnesses, plaintiff’s counsel not appearing to cross-examine. These depositions were filed in the district court in January of the year 1903. Plaintiff moved to suppress these depositions, but his motion was overruled. Without being noticed for trial, the district court at its January term, 1903, and in the absence of plaintiff’s counsel, although they were notified to attend again, took up the case [625] for trial, and. heard the oral testimony of some seven witnesses who were offered by the defendant, and in February of year 1903 the trial court, after hearing all of the evidence, and considering it with that introduced on the original hearing, entered a decree dismissing plaintiff’s petition. Thereafter plaintiff moved to tax the costs accrued since the original submission to the defendant. This motion was overruled. It will be observed that neither party filed a motion to reopen the case. The court assumed to do so long after final submission upon its own motion. This was entirely irregular, and without authority of law. Dunn v. Wolf, 81 Iowa, 688; Stein v. Roeller, 66 Minn., 283 (68 N. W. Rep. 1087); Farmers’ Bank v. Griffith, 2 Wis., 443; 15 Ency. of Pleading & Practice, 326. The depositions taken after the case was reopened should have been suppressed, and the court was in error in receiving the oral testimony adduced on the so-called second hearing.
We have disposed of the case on the testimony taken before the case was reopened, and refer to these irregular proceedings not only for the purpose of announcing a correct rule of practice, but to determine the question of costs. The court erred in overruling the motion to retax costs. It should have been sustained, and all the costs accruing after the original submission should be taxed to the defendant. About one-third of the costs on this appeal are due to this erroneous order of the trial court, and the defendant should pay this proportion thereof. While the decree dismissing plaintiff’s petition is correct, the trial court erred in overruling plaintiff’s motion to retax costs, and the cause must be remanded for a proper order in this respect. Plaintiff will pay two-thirds and the .defendant one-third of the costs of this appeal.— Modified and remanded.