Wilson v. Janes

29 Kan. 233

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action brought by L. C. Janes against Garrison Wilson, a road overseer in Haven township, Reno county, Kansas, to perpetually enjoin the defendant from opening a certain supposed public road across the plaintiff’s lands. The case was tried by the court, without a jury, and the court granted the perpetual injunction prayed for; and the defendant, as plaintiff in error, brings the case to this court for review.

Two principal questions were presented to the court below, to wit: First, Was said public road1 ever legally established by the board of county commissioners ? Second, And if it was so established, then was it so opened for public use as to prevent §1 of chapter 150 of the Laws of 1879, (Comp. Laws of 1879, p. 817, ¶ 5075,) from so operating as to vacate and annul that portion of the road which is located across the plaintiff’s premises? The first of these questions, the trial court decided in the affirmative, and the second in the negative : in other words, the trial court held that the road was legally established in July, 1873; but further held that it was never legally opened across the plaintiff’s premises, and therefore, that said >§ 1 of chapter 150 of the Laws of 1879 so operated as to vacate and annul that portion of the road which was located over the plaintiff’s land. It is the last portion of this decision of which the plaintiff in error (defendant below) now complains.

This is an equitable action; and as it is the plaintiff below, defendant in error, who invokes the aid of equity, we would naturally suppose, in the absence of proof to the contrary, that the plaintiff himself would not wish to see justice or equity defeated by the interposition of any unimportant technicalities or trivial irregularities, or of any other matters or things which would not reach to the ultimate rights of the parties, or which would preveat a decision of the case upon its real merits. We would naturally suppose that the plaintiff himself, who is the party who seeks equity, would desire to have a full, fair and complete trial of the case upon all the facts and circumstances of the case. Indeed, whoever might interpose unimportant technicalities or trivial irregularities to prevent either the district court or the supreme court from giving to both parties a full, fair and complete hearing of the entire case, or from rendering a decision doing full and complete justice and equity in the case, we would certainly not think that it would be the plaintiff. Whoever invokes equity should be willing that full and complete equity should be done; and this after a full, thorough and careful consideration of all the facts and circumstances of the entire case; but whether willing or unwilling, equity will not allow itself to be hedged in or hampered by unimportant technicalities or defeated by trivial irregularities, nor will it allow parties to win cases by quirks and quibbles. On the contrary, equity will take into consideration everything necessary for the purpose of duly administering equity and justice, and in its investigations it will not be controlled • by unimportant or immaterial matters, but will found its decisions upon the real essence and substance of things, and will finally render its judgment upon the real merits of the action. In the present case, before we proceed to the consideration of the merits of the ease we must dispose of some preliminary mattei’s.

courtjcasenot 'dismissed. The facts of the case, stated briefly, are substantially as follows: The plaintiff below filed his petition in the district court, praying for a perpetual injunction as above stated. The defendant answered, setting-up various matters in defense. In the fourth and fifth paragraphs of the defendant’s answer he stated, among other things, that the plaintiff’s land was owned by the Atchison; Topeka & Santa Fé railroad company at the time when the public road in controversy was established across the same; and that the railroad company consented to the establishment of such road; and that the plaintiff, when he purchased the premises from the railroad company, obtained the same at a reduced price on account of the establishment of such road; and ,that the road has been used as a public road by the traveling public for a period of over seven years without any objection from the owner of the premises. These paragraphs setting up these matters of defense the plaintiff objected to, and by motion and demurrer succeeded in having them stricken from the defendant’s answer. The case was then tried by the court, without a jury, and upon the pleadings and evidence the court announced what its decision would be; and the defendant then asked the court to make special findings of fact and of law, for the purpose that the same might be used in connection with the evidence in making a case for the supreme court. The court announced that it would comply with the defendant’s request; but that, as the term of the court was then about to close, and the court not having time to prepare such findings before the final adjournment, the judge would prepare the findings as soon as he could do so after- the adjournment, and that both parties could present to him such findings as they desired and he would consider the same at his home at Newton, and would return such of them as he deemed proper, duly signed. Counsel for both parties were present at the time and made no. objection, and it was believed by the court, and by the counsel for the defendant, that this was agreed to. The judge of the court, in an affidavit made by him, states, among other things, that “this was not objected to by the counsel for .the plaintiff, and was considered by the court as agreed to.” Special findings of fact and law were afterward prepared by the judge of the trial court, in accordance with this understanding, and were duly signed by him and handed to counsel for defendant. This of course was all done by the judge at chambers, and after the adjournment sine die of the court. Since that time the plaintiff and his counsel have persistently objected to the consideration of such findings, claiming that as they were not reduced to writing and signed by the judge before the final adjournment of the court, but were in fact reduced to writing and signed by him afterward, they are mere nullities, and cannot be considered in any court as having any validity. The defendant’s counsel, after receiving these findings and making a copy thereof, handed the original findings to the counsel for plaintiff, and the plaintiff’s counsel have never returned them to the defendant’s counsel or filed them in the office of the clerk of the district court, but retained them in their own possession, and they now object, and indeed have always objected, to any court taking any consideration of them; and this they do on the additional ground that they have never been filed in the office of the clerk of the district court. The defendant’s counsel made a case in due time for the supreme court, and in such case incorporated copies of these findings. At the time that this case was presented to the judge of the district court for settlement, counsel for the plaintiff, as well as counsel for the defendant, appeared, and counsel for the plaintiff suggested as an amendment to the case-made that these findings be stricken therefrom, and objected to the incorporation of the findings in the case-made, and this upon the ground, among others, that the findings had not been reduced to writing during the term of the court; and the suggestion and objection were argued before the judge by counsel for both parties, and the judge refused to strike out these findings, and took further time for the settlement and.signing of the case. Afterward, the judge settled and signed the case, and handed it to' counsel for the defendant. The judge had, inadvertently, omitted one important fact from the findings, and also from the case-made. The counsel for the defendant presented the case to one of the counsel for the plaintiff, and asked him to consent to the insertion of such fact; but counsel for plaintiff stated that he would not consent to anything. Counsel for the defendant then stated that he would return the case to the judge of the district court, and have the case amended by the insertion of such fact. Afterward, the counsel for the defendant -did return the case to the judge of the district court, and such fact was inserted in the case by such judge. Counsel for plaintiff now move to dismiss the case from this court, on the ground that the case has been “ materially altered” since it was first settled and signed by the judge of the district court. There were no other alterations or changes in the case-made than those above mentioned; and the counsel for defendant has filed in this court an affidavit of the judge of the district court stating among other things, that “the case-made and filed in the supreme court is the case-made as finally settled by the judge, and all changes made after its first signing were made by him.” After the case was settled and signed, and amended by the judge of the district court as aforesaid, counsel for defendant filed their petition in error and case-made in the supreme court; and this they did before the case-made had been filed in the office of the clerk of the district court, and before any attestation had been made thereto or placed thereon by such clerk. Afterward counsel for the defendant withdrew the case temporarily from the supreme court, with leave of one of the justices thereof, and filed it in the district court, where it was properly attested and_ authenticated by the clerk of the district court; and then counsel returned the case with such attestation and authentication to the supreme court. Counsel for the plaintiff below, defendant in error, now move to dismiss the case because it was not filed with the clerk of the district court before it was filed in the supreme court, and because it was not duly attested and authenticated by the clerk of the district court before it was filed in the supreme court. Upon this point see the case of Pierce v. Myers, 28 Kas. 364. Counsel for plaintiff below, defendant in error, also move to dismiss the case from this court, on the ground that the case-made does not show that plaintiff’s counsel were present at the time the case was settled and signed by the judge of the district court, or that they made any suggestion of amendments, or had any notice of the time fixed for the settling and signing of such case. The case was in fact presented to the judge of the district court at Newton, for the purpose of having it settled and signed; and as shown by proper evidence outside of the case-made, counsel for both parties were present, and plaintiff’s counsel suggested amendments and made objections as before stated, and argued the same before such judge. Upon this point see the case of Russell v. Anthony, 21 Kas. 450.

We shall now proceed to the consideration of the case upon its merits; but before doing so, we think it would be proper to state that the motions of the plaintiff below, defendant in error, to dismiss the petition in error and case-made from this court, will bé overruled.

„ „ „ 2. Case-made, contents of. In overruling these motions, however, we do not wish to be understood as deciding anything further than is really necessary to be decided under the circumstances. We do not wish to be understood as deciding that a judge of.the district court at chambers can make special- findings after the court has adjourned, unless, as in this case, a demand for such special findings was made at or before the time when the court regularly and properly made its findings; and unless there was an apparent, understanding at such time between the parties and the court that the judge might make such findings at chambers and in vacation. And we do not wish to be understood as deciding that a judge of the district court at chambers may change or alter a “case-made” for the supreme court after such “case-made” has passed away from his jurisdiction or control, or even after it has been filed in the office of the clerk of the district court for the clerk’s attestation and authentication. We would suggest, however, that it is not necessary that a “case-made” should contain only J J such matters and things as are otherwise made a part of the record of the case. Such is not the practice. Usually a case-made contains many things which are never in any other manner made a part of the record of the case. We do not wish to state all the reasons that might be given for overruling the said motions, for many of them we think are so manifestly obvious that a statement of them is wholly unnecessary.

2. Decision of cóS“otnessrt’ presumed. As before stated, there are two principal, questions involved in this case: First, was the road in controversy legally established ? Second, was it legally opened ? The first of these questions the court below answered in the affirmative,. and the second in the negative, and all presumptions are in favor of the correctness of its decision upon both these questions. Counsel for defendant in error (plaintiff below) seem, however’, to argue the first question upon a different theory. We are not to treat the decision of the court below upon either of these questions as erroneous, unless the contrary is affirmatively shown; but must in fact consider both of these decisions as correct, unless the facts of the case clearly and affirmatively show the reverse to be true. For instance, if the court below has failed to state in detail and specifically all the facts necessary to affirmatively show the validity of the establishment of the road in question, we must not, as against the correctness of its decision, jump to the conclusion that the road was not legally established ; but, on the contrary, we should presume that the facts not specifically found, would, if they were stated in detail and specifically, show that the road was duly and legally established. There is certainly nothing in the present case that shows affirmatively that the road was not legally established ; and, indeed, we are inclined to think that the facts found by the court below show affirmatively and conclusively that the road was legally established; but, as before stated, all presumptions are in favor of the correctness of the decision of the court below, upon this as upon other questions. The road was established by the board of county commissioners of Reno county, in July, 1873, and from that time forward, for at least seven years, the road has been in legal contemplation “ a public highway.” (Gen. Stat. of 1868, ch. 89, § 6; Comp. Laws of 1879, ch. 89, § 6.)

The second question above mentioned is the most important question in the case; and upon this question, and this alone, the court below rendered its final judgment in the case, in favor of the plaintiff below and against the defendant below. The court found that although the road in question had been legally established, yet that it had never been legally opened, and therefore that it was vacated and annulled by virtue of the provisions of §1, chapter 150, Laws 1879, (Comp. Laws 1879, p. 817.) Of course all presumptions are in favor of the correctness of this decision, as .well as of the other decisions of the court below; but if it should be found from the detailed statement of the facts of the case, as found by the court below, that this decision was merely a conclusion of , law from the facts found by the “court below, and that such conclusion is erroneous, then the decision of the court below should be reversed. Otherwise, the decision should be affirmed. The facts as found by the court below, with reference to this question, are as follows :

"Tenth. That from the fall of 1872 there has been general travel across the premises described in plaintiff’s petition, in the general direction of the surveyed route of said road; that said line was the main line of travel from the southeast to the city of Hutchinson, and has been a well-defined and extensively-traveled road; that the route of said travel is generally the same as the surveyed line, and follows the same general course, and touches the said surveyed lines at several points, but deviates therefrom most of the distance across said plaintiff’s premises from six to fifteen rods; that there is a pond upon the said premises, impassable in wet weather, and here the said line of travel deviates furthest from said surveyed line; that the road overseers of the several districts through which said road runs have worked the same, and bridges have been erected, and. that one-half mile southeast from plaintiff’s premises there is a bridge on the said road that cost $200, and other, bridges, thereon between said premises and the city of Hutchinson; that the road overseer in the district in which said premises are situated has caused work to be done on said road, and in 1879 he did work on the surveyed line through the premises of plaintiff hereinbefore mentioned,,and the team of said plaintiff and the man in his employ worked thereon, without the knowledge of plaintiff, at the time the work was done, and worked out the taxes of the said plaintiff; that prior to the fall of 1877 the said premises were the property of the Atchison, Topeka & Santa Eé railroad company, and were up to said time unimproved and unbroken prairie land, and all plowing and improvements thereon have been done since the date of said purchase; that the said road is 17 miles in length, and, except on the premises 'of plaintiff, the route of travel was in general the same as the surveyed line; that A. H. Beagle was road overseer in 1879, and plowed across said premises except about 40 rods, to designate the line of said road, and failed to go further at the request of plaintiff not to plow through his cultivated land where oats were growing; that more than seven years had elapsed from the time of the making of the order of the board of county commissioners establishing said road to the time that plaintiff received notice that said road would be opened through his premises; that none of the papers in the case bore any dates of filing in the county clerk’s office, but that all of the papers, except the notices and proofs of publication and bond for costs, were found among the papers and records of the county clerk’s office; that there are regularly established highwáys on two sides of the premises owned by plaintiff; that the traveled road through the premises of plain-' tiff was a part of an old government road used in going from Wichita to Fort Zarah, and was so used prior to and at the time of the settlement of the county through which it now passes; that no attempt to open the surveyed road through the premises of plaintiff was ever made until in August, 1880, at which time notice was given by the overseer that the road would be opened on the 1st day of January, 1881, unless opened sooner by plaintiff.”

Perhaps it would here be proper to refer to the fact that the defendant set up in his answer that the railroad company had knowledge of the establishment of the road in question, and consented thereto, and afterward sold the land to the plaintiff at a reduced price because thereof, and that the plaintiff procured by motion and demurrer these matters to be stricken from the defendant’s answer. Said § 1, ch. 150, Laws of 1879, provides; among other things, as'follows:

“Section 1. That any county road, or part thereof, which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of seven years at any one time after the order made, or the authority granted for opening the same, shall be, and the same is hereby vacated, and the authority granted for erecting the same is barred by lapse of time.”

4. Law and fact, noatun;ope£eá meaning of statute Was said road ever legally opened? and what must be done in order that a public highway shall be considered as legally opened? Th'e statutes in effect provide that the road overseers, in their respective districts, shall vive 7 r 7 ° notice to such owners of lands, or their agents or guardians, as reside in the county and have cultivated and inclosed lands through which the highway is established, to open the highway through their .lands; and also provide that such road overseers, within their respective districts, shall remove all obstructions, and put the highway in such condition as to make it fit for public .travel. And this is all that the statutes require in order to open a public highway. No notice is required to be given to persons who do not reside within the county, or to persons who do not possess or own cultivated or inclosed lands through which the highway is established; and it is not necessary that the highway should be actually traveled; all that is in fact necessary, is that it should be put in a condition for public travel. If it were naturally in such a condition, that would be sufficient, without any work from the road overseer. Prom June 20, 1872, up to April 25, 1874, the notice above mentioned was required to be in writing. (Laws of 1872, ch. 175, § 5.) But since April 25, 1874, up to the present time, it has not been necessary that the notice should be in writing. (Laws of 1874, ch. 108, §§12, 34; Comp. Laws of 1879, ch. 89, §§12, 34.) Hence, from the time the road in controversy was established in 1873, up to some time after the time when the plaintiff purchased his land from the railroad company, which was in 1877, no notice of any kind, written or oral, was required to be given either to thp railroad company or to the plaintiff; for up to that time the land was vacant, unoccupied, uninclosed and uncultivated; and since that time, a verbal notice, and such notice as wás in fact given to the plaintiff by the road overseer, Beagle, in 1879, was sufficient; and 'this last-mentioned notice was given within less than seven, and probably within less than six years after the road was established. As before stated, the road was established in July, 1873, and this notice was given by the road over seer, Beagle, while oats were growing on the land, in 1879. A public highway might also be opened, without anything being done by the road overseers for that purpose. The people themselves along the line of the road might open it: or the public travel might at once take possession of the road and use it. And whenever a public road is traveled, it is in fact opened, although nothing may have ever been done by the road overseers for the purpose of opening it. No formal opening is ever required. It is true, it may be formally opened by the several road overseers along the line of the road, but it may also be informally opened by themselves or by others; or it may be opened in fact by the public travel taking possession of it and using ■ it. As before stated, no notice is ever required to be given where the land over which the road is .established is vacant and unoccupied; and no work is ever required to be performed where no work is needed. A road may be opened without either notice or work: travel alone upon such a road would be a sufficient opening of the same. And certainly, whenever a road is in fact used as a public highway by-the public, it cannot be considered as an “unopened” road within the meaning of §1, eh. 150, of the Laws of 1879. In the present case, the road was seventeen miles in length; it passed through several road districts; was worked and repaired by the several road overseers along the line of the road; and work was done even on the plaintiff's own premises. Bridges were built upon it, and a great amount of travel passed over the same; and there is nothing to show that the public at any time had the slightest intention of abandoning the road as a public highway. The court below in its findings states, among other things, “that the said road is seventeen miles in length, and, except on the premises of the plaintiff, the route of travel was in general the same as the surveyed line;” and the traveled road through the plaintiff's premises touches the surveyed line at several points, but deviates therefrom the most of the distance through the plaintiff’s premises from six to fifteen rods. There was a certain pond on the plaintiff's premises where the traveled road deviated the farthest from the surveyed line, but the road overseer in that district in less than seven years, and probably within less than six years from the time when the road was established, worked on the surveyed line where it passes through this pond. This it would seem was the only natural obstruction to travel on the plaintiff’s premises, and this was an insuperable obstruction only in wet weather, and this was repaired by the road overseer in 1879. The road overseer, Beagle, also, in 1879, and probably within six years after the road was originally established, attempted to open the road on the surveyed line all the way through the plaintiff’s premises; and he did so, except as to a distance of about forty rods, and refrained from opening the road this distance- at the request of the plaintiff, who then, in 1879, had oats growing on the premises along the surveyed line for that distance.^ The road overseer evidently refrained from opening the road for this short distance of forty rods solely for the purpose of giving the plaintiff an opportunity to save his crops, and to open the road himself on or prior to the first day of the next January, (road law of 1874, § 12;) and it was the legal duty of the'plaintiff to so open the road within that time, and he certainly cannot now claim that he has destroyed the road simply by procuring such leniency on the part of the road overseer, and then by failing to perform his legal duty in the premises.

Among other authorities we would cite the following cases as having some application to the present case: Stickel v. Stoddard, 28 Kas. 715; Peck v. Clark, 19 Ohio, 367; Lessee &c. v. Mehrenfeld, 8 Ohio St. 440; McClelland v. Miller, 28 Ohio St. 488; The State v. McGee, 40 Iowa, 595; The State v. K. C. St. J. & C. B. Rld. Co., 45 Iowa, 139.

We, think the road in the present case was legally opened. The judgment of the court below will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.