Stalder v. Miles ( 1922 )

Sears, District Judge.

The question in this case is, whether a certain road or trail across certain uninclosed lands had become, a legal highway by dedication or prescription. The district court found in favor of defendants and denied the injunction which was sought to prevent the building of a fence across the alleged highway. The only questions involved are questions of fact.

To establish a toad by dedication, evidence of acts upon the part of the owner showing such intent must be produced. Mere acquiescence or permission to use the road does not operate to deprive the owner of his property. Graham v. Hartnett, 10 Neb. 517; Postal v. Martin, 4 Neb. (Unof.) 534; Van Wanning v. Deeter, 78 Neb. 284. The road or trail had been used for many years by a few people living in the vicinity. It was what is usually termed a “neighborhood road.” Prom a point where a fence had been bnilt on tbe line of tbe southwest quarter of section 29, it traversed open and uninclosed prairie land. It did not always follow the identical course,. although the general direction was the same. We find no evidence to justify a finding that there was ever an intention on the part of the owners of the land at any time to establish a road by dedication.

Neither do we find convincing proof that the road had been established by prescription, under the rule of Engle v. Hunt, 50 Neb. 358, and Smith v. Nofsinger, 86 Neb. 834. The burden was upon plaintiff to prove this. The evidence convinces us that the use of the road or track had always been by permission until it was sought to inclose the land traversed by it. It crossed diagonally a tract of 800 acres owned in a body by defendant and his predecessor in title. While the fact that revocation of the license to travel this way will inconvenience plaintiff and cause him to travel a greater distance to reach one of his farms, and-other farmers in order to reach a town, may be regretted, the remedy is to follow the method prescribed by the statute for the establishment of a public highway and apply to the public authorities for relief in this respect. It would serve no useful purpose to set out the evidence in detail The judgment of the district court was right, and it is

Affirmed.