The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by Ed. R. Smith against S. W. Smith, to recover damages for obstructing a public road. It was admitted that the obstructions were placed as alleged in the petition. Nominal damages only were claimed upon the trial, the real contest between the parties being whether there was a legal highway at the points obstructed. Judgment was rendered for plaintiff. The defendant’s motion for a new trial being overruled, he brings the case here.
The demurrer to the petition was properly overruled. The injury alleged is special and peculiar to the plaintiff, if a public highway in fact exists, as claimed by him, and therefore he has his right of action. (Bobbett v. The State, ex rel., 10 Kas. 9; Nixon v. School District, 32 id. 510.)
If the defendant desired the situs or place of the alleged way set forth in the petition fixed with greater certainty, the [299] court, upon his motion, might have required the pleading to be made definite in that regard by amendment. (Code, § 119.)
The court instructed the jury that “the alleged highway or route of travel described in the petition had not been established or laid out under the statute;” but upon the theory that there was evidence before the jury tending to show the road had. been established by use or prescription, instructed them that—
“If they believe from the evidence that the alleged road or' way over the lands of plaintiff and defendant had been used continuously for public travel and public use, with the knowledge, assent or acquiescence of the owners of the land, for fifteen years previous to the time of the alleged obstructions, they were authorized to find the same to be a public road.”
The court further instructed the jury that—
“Persons in the possession or occupancy of land, claiming homestead or preemption rights therein under the general government, and afterward obtaining the title thereto from the government, are owners of the land so as to assent or acquiesce in the use of a portion thereof as a public highway.”
The court refused to give the following instructions requested by the defendant:
“ 1. In order to constitute a highway by prescription or use, the use and enjoyment of it by the public for a highway must have been continuous for the period of fifteen years under a claim of right, and must generally be so continued and uninterrupted with the knowledge, assent or acquiescence of the owner of the land.
“ 2. Use alone of uninclosed and wild prairie land will not support a prescription for a highway, and therefore no use alone by the public of a way over uninclosed prairie land, however long continued, will establish a highway.
“3. To constitute a dedication of a highway to the public, the intention on the part of the owner of the land to dedicate it, and an act of dedication and acceptance by the public, must be shown.”
The testimony tended to show, among other things, that Ezra Smith, the father of the parties, settled on the N. E. J of section 14, township 22, range 23, in Linn county, in 1857, and in that year made a filing thereon; that the alleged [300] road, or one near it, was traveled before 1857, and in 1859 a road was surveyed over uninclosed prairie land, Smith agreeing to its location across the land filed upon by him; that he used the road as a public highway to the time of his death, in 1862; that during the lifetime of his father, Ed. E. Smith claimed the N.E.J of section 14, township 22, range 23; that Ezra Smith did not perfect his title to the land filed upon by him before his death; that neither his wife nor his children obtained any right or title to the premises on account of his settlement or filing; that after his death, the N.E. ¿ of section 14 and the S.E.J of section 11, township 22, range 23, embracing 320 acres, were divided between Ed. E. Smith and his mother, Mehitable Smith, by a line running north and south; that the mother homesteaded the east 160 acres, and Ed. E. Smith the west 160 acres; that the mother took possession of the premises homesteaded by her in 1863, and on September 1, 1869, received a patent from the United States upon her certificate for the east half of the S.E. ¿ of section 11 and the east half of the N.E.-J of section 14, in said township 22, embracing 160 acres; that on March 11, 1871, she deeded premises to defendant, S. W. Smith; that she died in 1873; that Ed. E. Smith is still the owner of the west half of the N.E.J of section 14 and the west half of the S.E.-J section 11, in said township 22; that the defendant owns and resides upon the land deeded to him by his mother, and in March, 1881, made the obstructions complained of.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by Ed. R. Smith against S. W. Smith, to recover damages for obstructing a public road. It was admitted that the obstructions were placed as alleged in the petition. Nominal damages only were claimed upon the trial, the real contest between the parties being whether there was a legal highway at the points obstructed. Judgment was rendered for plaintiff. The defendant’s motion for a new trial being overruled, he brings the case here.
The demurrer to the petition was properly overruled. The injury alleged is special and peculiar to the plaintiff, if a public highway in fact exists, as claimed by him, and therefore he has his right of action. (Bobbett v. The State, ex rel., 10 Kas. 9; Nixon v. School District, 32 id. 510.)
If the defendant desired the situs or place of the alleged way set forth in the petition fixed with greater certainty, the [299] court, upon his motion, might have required the pleading to be made definite in that regard by amendment. (Code, § 119.)
The court instructed the jury that “the alleged highway or route of travel described in the petition had not been established or laid out under the statute;” but upon the theory that there was evidence before the jury tending to show the road had. been established by use or prescription, instructed them that—
“If they believe from the evidence that the alleged road or' way over the lands of plaintiff and defendant had been used continuously for public travel and public use, with the knowledge, assent or acquiescence of the owners of the land, for fifteen years previous to the time of the alleged obstructions, they were authorized to find the same to be a public road.”
The court further instructed the jury that—
“Persons in the possession or occupancy of land, claiming homestead or preemption rights therein under the general government, and afterward obtaining the title thereto from the government, are owners of the land so as to assent or acquiesce in the use of a portion thereof as a public highway.”
The court refused to give the following instructions requested by the defendant:
“ 1. In order to constitute a highway by prescription or use, the use and enjoyment of it by the public for a highway must have been continuous for the period of fifteen years under a claim of right, and must generally be so continued and uninterrupted with the knowledge, assent or acquiescence of the owner of the land.
“ 2. Use alone of uninclosed and wild prairie land will not support a prescription for a highway, and therefore no use alone by the public of a way over uninclosed prairie land, however long continued, will establish a highway.
“3. To constitute a dedication of a highway to the public, the intention on the part of the owner of the land to dedicate it, and an act of dedication and acceptance by the public, must be shown.”
The testimony tended to show, among other things, that Ezra Smith, the father of the parties, settled on the N. E. J of section 14, township 22, range 23, in Linn county, in 1857, and in that year made a filing thereon; that the alleged [300] road, or one near it, was traveled before 1857, and in 1859 a road was surveyed over uninclosed prairie land, Smith agreeing to its location across the land filed upon by him; that he used the road as a public highway to the time of his death, in 1862; that during the lifetime of his father, Ed. E. Smith claimed the N.E.J of section 14, township 22, range 23; that Ezra Smith did not perfect his title to the land filed upon by him before his death; that neither his wife nor his children obtained any right or title to the premises on account of his settlement or filing; that after his death, the N.E. ¿ of section 14 and the S.E.J of section 11, township 22, range 23, embracing 320 acres, were divided between Ed. E. Smith and his mother, Mehitable Smith, by a line running north and south; that the mother homesteaded the east 160 acres, and Ed. E. Smith the west 160 acres; that the mother took possession of the premises homesteaded by her in 1863, and on September 1, 1869, received a patent from the United States upon her certificate for the east half of the S.E. ¿ of section 11 and the east half of the N.E.-J of section 14, in said township 22, embracing 160 acres; that on March 11, 1871, she deeded premises to defendant, S. W. Smith; that she died in 1873; that Ed. E. Smith is still the owner of the west half of the N.E.J of section 14 and the west half of the S.E.-J section 11, in said township 22; that the defendant owns and resides upon the land deeded to him by his mother, and in March, 1881, made the obstructions complained of.
[301] Public road— when on government land, when not; prescrip [300] The jury especially found as a fact that Ezra Smith became the owner of the N.E. £ of section 14, township 22, range 23, in 1858; they also found as a fact that the road was established by dedication by him in the year 1859; and they further found that the use of the route or road, which ripened into a prescriptive right, began in the year 1859. When these findings of the jury are / considered in connection with the instructions of the court given and refused, it is apparent that the jury must have been misled. These findings are not supported by the evidence, and the verdict of the jury [301] ought to have been set aside. The road could not have been. dedicated in 1859 by Ezra Smith, because he was not then the owner of the premises over which the road is alleged to have been located; nor could any prescriptive right have commenced in the year 1859, because at that time the land belonged to the United States. We do not think that a person who is occupying government land intending to obtain the same under the preemption or homestead laws, can dedicate it or any portion thereof for a public road until he has done all that he is required to do to obtain the title to the land under such laws; nor do we think that a public road can be established by prescription or limitation while the land over which the road runs belongs to the United States; nor can any portion of the time while the land belongs to the United States be counted in establishing a public road by prescription or limitation. And this is true, although the land at the time may be occupied by a person intending to obtain the land under the preemption or homestead laws of the United States, but who has not yet done all that he is required to do in order to obtain the title to the land. Again, a public road cannot be established by prescription or limitation while the land over which the road runs is unimproved and unoccupied prairie land, over which people may travel at their pleasure. (The State v. O’Laughlin, 19 Kas. 504; Railway Co. v. Long, 27 id. 684; The State v. Railway Co., 45 Iowa, 139-143; Graham v. Hartnett, 10 Neb. 517; Bowman v. Wickliffe, 15 B. Mon. 84; Commonwealth v. Kelly, 8 Gratt: 632; Watt v. Trapp, 2 Rich. [S. C.] 136; Gibson v. Durham, 3 id. 85; Bethum v. Turner, 1 Greenl. 111; Hewins v. Smith, 52 Mass. 241; Harding v. Jasper, 14 Cal. 643; Stacey v. Miller, 14 Mo. 478; The State v. Green, 41 Iowa, 693; The State v. Joyce, 39 Wis. 90; Warren v. Jacksonville, 15 Ill. 236.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.