City of Hollis v. Gould , 190 Okla. 335 ( 1941 )

This is an action in damages against a municipality to recover compensation for land taken for a public road. Jury was waived, and trial to the court resulted in judgment for the plaintiff, and defendant appeals.

Defendant says the judgment is contrary to law and the evidence.

The land in question is a narrow strip along the side of a tract owned and occupied by plaintiff for approximately 40 years. In 1903, when the defendant city was a small village, plaintiff opened the strip as a private way to a wagon yard and blacksmith shop located on her premises. This way was originally a blind or dead-end road extending to an intersecting wire fence belonging to a third party. In 1906, this fence was removed by the owner, and the public commenced using the road as a through street.

Plaintiff alleges that the road, though originally a private one, had been used by the public from time to time with her consent, and that she had at no time surrendered the same to general public use. That the city first laid open claim thereto in 1927, when an attempt was made to pave the road as a street, at which time plaintiff laid claim thereto and the defendant desisted and refrained from proceeding with said paving; that subsequently, and on numerous occasions, defendant has entered upon the premises and graded the same for a public street, thus appropriating the land for public use without compensation.

The answer asserts title by prescription under the 15-year statute (sec. 99-4, O. S. 1931, 12 Okla. Stat. Ann. § 93).

In Seaman v. Chesnut, 180 Okla. 582, 71 P.2d 965, the court, in considering a similar question with reference to the elements necessary to the acquisition of a highway by prescription, applied as the law in this state the following quotation from 29 C. J. 373:

"To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner's permission, and continuously, and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present, a highway exists by prescription; otherwise not."

And the rule was there stated as follows:

"A public highway may be established by prescription in Oklahoma if the land is actually used by the public for that purpose, with the knowledge of the owner, actual or implied, adversely under a claim or color of right and not merely with the owner's permission, and continuously and uninterruptedly for the period required to bar an action for the recovery of the possession of land or otherwise prescribed by statute."

In the instant case the land was actually used by the public as a highway for a period sufficient to establish the easement by prescription, and such use was with the knowledge of the plaintiff, but there is one element wanting, and its absence is fatal to defendant's claim. The evidence shows that the use by the public was merely at the consent of the plaintiff, and in the face of this consent there was no evidence of an adverse claim or color of right. Where the owner merely consents to the use, a highway cannot be acquired by prescription in the absence of an adverse claim or color of right on the part of the public.

Defendant relies on Seaman v. Chesnut, above, as being in point here and controlling of the present issue. In that case all elements necessary to the acquisition of a highway by prescription were present. There the adverse claim or color of right arose out of an agreement between the interested landowners to remove their fences and permit the public to use the land as a road or highway. Defendant says there was evidence of such an agreement here, but we are unable to agree with this statement. As stated above, a fence crossing the strip of land was removed by its owner, but there is no evidence to indicate that the plaintiff had any part in such removal.

Since it was shown that the claim or color of right of the defendant was based on nothing more than the mere permission of the plaintiff that the land might be used, the evidence would not support a finding of adverse user or title by prescription. The judgment was therefore supported by the evidence in this case.

The question as to the propriety of the remedy pursued has not been raised here (Oklahoma City v. Wells, 185 Okla. 369,91 P.2d 1077, 123 A.L.R. 662), and is not considered.

The judgment is affirmed.

CORN, V. C. J., and RILEY, OSBORN, BAYLESS, and ARNOLD, JJ., concur. WELCH, C. J., and HURST and DAVISON, JJ., dissent.

On Rehearing.