Board of County Commissioners v. Patrick , 18 Wyo. 130 ( 1909 )

Scott, Justice.

The defendant in error (plaintiff below) brought this action in the District Court of Sheridan County against the plaintiff in error (defendant b.elow) to enjoin the county from interfering with or. removing a fence theretofore constructed by him across a road known as the Soldier Creek road. A temporary injunction was allowed, which upon issue joined and trial thereon was made perpetual. The county brings the case here on error.

It is assigned as error first. That the decision and judgment are contrary to law, and, second, that the decision and judgment are not sustained by sufficient evidence and are contrary to and against the great weight of the evi-. dence. For convenience these assignments will be considered .together.

From the record it appears that as early as 1883 Patrick was and continuously thenceforth has been and is now the owner in fee of Sections 29 and 30 of Township 56 North of Range 86 West of the Sixth Principal Meridian, formerly in Johnson County, but since the time of its organization in 1888, in Sheridan County, Wyoming.

The evidence tended to show that on February 4, 1886, there was filed in the office of the County Clerk of Johnson County a plat and the field notes of the County Surveyor of that county of a survey theretofore made by him of the Soldier Creek road and which plat and field notes show the location of the road as surveyed to be on the north boundary and along the section line of said sections 29 and 30. Owing to the fact that there was a hill or bluff upon the north boundary of section 30, the road as actually followed by the public from the time of such survey until closed by Patrick, diverged to the south of the section lines over and across Patrick’s land and around the base of the hill. Patrick’s north fence was parallel to, south of and followed the road in its divergence around the hill. The road was a thoroughfare and one of the main traveled roads from Dayton in said county of Sheridan to the county seat until the spring of 1905, when Patrick, being in ignorance of the true location of the north section line of said sections 29 and 30, procured a survey to be made and discovered that the fence which he supposed had been erected on the section line as well as the road was south of the section line in some places more than 400 feet, and that there was about 15 acres of his land unenclosed and north of the fence. He then tore down his fence, or rather, moved it north and reconstructed it klong and parallel with the section line as surveyed and opened a road as originally surveyed on the section line over the bluff which had been avoided by that part of the road which had theretofore crossed his land. The members of the Board of County Commissioners threatened or were about to take official action by causing the fence to be removed from the line of travel as theretofore used by the public under the provisions of Section 1926, R. S-, and had notified him officially of their intention to do so, whereupon this action was commenced to enjoin the Board from so doing.

The county did not defend upon the ground of a legally located highway, that is, a highway located under the provisions of the statute, but on the ground that the road had become a lawful public road by user for more than the period of ten years, that being the time limited by statute within which an action for the recovery of real estate mav be brought after the cause of action accrues. (Sec. 3451, R. S. Wyo. 1899.)

Patrick claims that when he discovered the true north line of his land by reason of the survey he called at the room where the Board of County Commissioners held their sessions and conversed with the individual members of the Board, and was told by them to move his fence to the section line. There is no record evidence of any official action of the Board in this matter, and that being so, there was no authority vested in Patrick by the verbal consent of the individual members of the Board. (Schwerdtle v. County of Placer, 108 Cal. 589.) The public could not be deprived of its right, if any, to use the road except by and through the official • acts of the Board, and in the absence of such act, the parties would be left in the same position as though no such consent had been given.

There is no question here raised as to the validity of the road as originally surveyed along the section line. The question presented by the record is, can a road so located be diverted from its original course to and over lands of another, in the absence of dedication by the owner, without official action or the assumption of control by the Board, and by long continued use by the public, become a public or county road? It will be observed that the part of the road here involved, that is, in so far as it run south of the section line across Patrick’s land, had been so used by the public for 19 years without objection by him before he moved his fence. The land was wild and unenclosed, and while there is some conflict in the decisions, we are of the opinion that this long period of uninterrupted use by the public was not of itself sufficient to vest title by prescription. The great weight of authority supports this view and is based Upon the proposition that such user, in order to ripen into title, must in some way be adverse to occupancy or actual as opposed to constructive possession, under a claim of public right known to the owner. (22 A. & E. Ency. of Law, 1221, 1222.) The record does not disclose, nor is it here contended, that the part of the road involved was the only practical way for a road at that point, so as to bring it within the exception to this rule, but, on the contrary, it shows the travel of a road by the public in that vicinity, since the fence was moved, upon a different line and 'as originally surveyed.

In addition to the use of the road by the public in the absence of a dedication, express or implied, by the owner of the land, other than by his mere silence, assumption of control and jurisdiction over it by the Board of County Commissioners for the period of limitation should be shown. The burden of proof was on the county, to prove its affirmative defense. Evidence of assumption of control and of jurisdiction over the road by the public, through its proper authorities, as by recognition and working the road by public authority for the required length of time is. we think, necessary to support the title by prescription. In other words, a claim of public right is essential, and such claim can only be made by the public through its duly constituted authorities. (Stewart v. Frink, 94 N. C. 487, 55 Am. Rep. 618.) Its use would then be under a claim of right, and if with the knowledge of the owner, would constitute adverse user. (Jones v. Bright, 140 Ala. 268; Gehris v. Fuhrman (Neb.), 94 N. W. Rep. 133; Washington v. Steiner, 25 Pa. Super. Ct. 392.) The land in question, being unimproved and unenclosed prairie land until some public authority, acting within its proper sphere, assumed supervision or control of the road or kept it in repair, the use of it by the public will be deemed to have been permissive by the owner. (O’Connell v. Chicago, &c., R. Co., 184 Ill. 308, 56 N. E. 355; Watson v. Adams County, 38 Wash. 662; 22 A. & E. Ency. of Law, 1222.) Such use, that is to say, use by permission or sufferance, is not adverse and can not ripen into title, no matter how long continued. (Jones v. Bright, supra; Hartley v. Vermillion (Cal. 1902), 70 Pac. Rep. 273; 1 Cyc. 1030; 22 A. & E. Ency. of Law, 1221, 1222, and cases cited in the footnotes.)

In the case before us, one witness testified that he viewed and laid out the road in 1885, and that since then there had been very little divergence from the road as laid out and that traveled by the public over Patrick’s land. He further testified that in the following summer, that is in 1886, he worked on that part of the road which was closed by the fence, and that he so worked under the direction of the road supervisors of Sheridan County. This court takes judicial notice of the fact, as the trial court undoubtedly did, that Sheridan County was unorganized untill 1888. The witness was undoubtedly mistaken, but his evidence stands in the record uncontradicted. We know judicially that Sheridan County was a part of Johnson County at that time, and it may be that the witness meant to say Johnson instead of Sheridan, but we cannot go beyond the record nor read into it something which is not there. His evidence could, therefore, have been of no value to the trial court in fixing any time when the public, through their constituted authorities, if they ever did so, assumed control of the road. The only evidence in the record of repairs to or the assumption of control over this road by any public authority relates to work performed more than ten years thereafter, and within ten years prior to the time when Patrick moved his fence, and by so doing interrupted the running of the statute. (Rollman v. Erurich, 122 Wis. 134; Gehris v. Fuhrman, supra; Coward v. Llewellyn, 209 Pa. St. 582; Washington v. Steiner, supra; Ft. Worth v. Cetti (Tex. Civ. App., 1905), 85 S. W. Rep. 826.) It follows that the title or the right to maintain the road had not accrued by prescription. The judgment will be affirmed.

Affirmed.

Potter, C. J., and Beard, J., concur.