
    Joseph Maticka, appellee, v. Edward E. Jensen, appellant.
    Filed March 13, 1915.
    No. 17859.
    Highways: Establishment by User. Where, after an attempt has been made to lay out a public road across open prairie land, which, through failure to comply with statutory requirements, fails to legally establish such road, the public enters upon and uses the same as a public road, and the owner of the land traversed thereby fences his land on each side of the road along the entire line thereof, cultivating the land on one side, and using that on the other side as a pasture, and these conditions continue to exist for ten years or more, the irregularity in the original proceeding will be held cured, and such land thereby becomes and will remain a public road until vacated or abandoned, as provided by law.
    Appeal from the district court for Howard county: James N. Paul, Judge.
    
      Affirmed.
    
    
      W. H. Thompson, for appellant.
    
      T. T. Bell, contra.
    
   Hamer, J.

The plaintiff is tlie road overseer. He brought an action in Howard county, seeking to enjoin tbe defendant from fencing in and plowing up an alleged highway. Tbe cause was tried before tbe Honorable James N. Paul, one of tbe judges of tbe district court. Tbe defendant bad filed a motion to dissolve tbe injunction granted at tbe commencement of tbe case. The case came on for trial on tbe petition and answer in tbe main case. There was an effort to punish tbe defendant for contempt. Tbe court reserved bis decision on tbe order to show cause why tbe defendant should not be attached for contempt until a full bearing-should be bad. Tbe trial was on May 10, 1912. Tbe journal entry of tbe trial recites: “The court, after bearing tbe evidence and argument of counsel, and after consideration, and being fully advised in tbe premises, finds on tbe issues joined that a county road exists on and across tbe northeast quarter of section twenty-nine (29) township sixteen (16) north of range ten (10) west, of the sixth P. H., in Howard county, Nebraska, near the northeast corner thereof, cutting off about twelve acres in said corner; that said road was established in the year 1883, and the same has been in continuous use by the public generally from said date up to November, 1911; that said road has been unlawfully closed and fenced by the defendant, Edward E. Jensen, and said fences are noAV across, upon and obstructing public travel along and on said road. On the main cause in this case, it is considered and adjudged by the court that a mandatory injunction issue commanding Edward E. Jensen, defendant herein, to remove any and all obstructions of whatever nature or kind, either in, on, over, or across said road, and that he open said road 66 feet wide over and across said land, and that he do so within five days after notice of this injunction and order; and the said defendant is enjoined from (in) any manner obstructing said road or interfering with public travel on, along and over said road henceforth.” There was a further finding that the defendant was not guilty of contempt in disobeying the temporary injunction. From the order made the defendant appeals.

On May 17, 1912, a further order was made: “That the defendant, Edward E. Jensen, take down and remove all fences and other obstructions in, on, over and across the public highway running across the northeast quarter of section 29, in township 16, range 10, in Howard county, Nebraska, near the northeast corner of said quarter section, and he, the said Edward E. Jensen, is further enjoined from erecting, placing upon or causing to be erected or placed upon, or in, by himself, his agents, attorneys or employees, any fence or obstruction in, over or upon said highway, and from digging, plowing or in any manner damaging said highway, and from in any manner interfering with public travel on and along said highway; and the said Edward E. Jensen is further ordered to remove all such obstructions and keep said highway clear therefrom for a width of 66 feet at all points across the said northeast corner of said quarter section.”

The evidence shows that in 1883 a petition was filed by 13 resident taxpayers in the vicinity of the road in question, asking for the laying out of the road. The evidence does not show that any of the statutory requirements for the laying out of public roads was subsequently complied with. The only other evidence of any action that was taken is an entry in the commissioners’ record as follows: “On motion, the road petition, filed by Michael Chmielecki et al. was granted as prayed for.” After these informal proceedings were had the public continued to travel across defendant’s land by substantially the same route as theretofore; the only variation being a slight change of a few rods at one end of the road caused by the construction of a. fence. This change was made about 21 years prior to the time of the trial of this suit. Therefore the public gradually used the road in question as a public road, and the owner of the land traversed thereby fenced his land on each side-of the road along the entire line thereof, cultivating the land to crop on one side, and using the land on the other side as a pasture. These conditions continued to exist for at least 15 or 20 years prior to the time defendant attempted to close the road.

The defendant relies upon two defenses: (1) That no road was ever legally laid out across his land, which is true. (2) That he closed the road by permission of the county commissioners under an agreement made with them that if he would grade the road on the section line around the northeast corner of his land, so as to connect the section line road at the point where the road in controversy left the east line of his land with the section line road where the road in question connected therewith on the north line of his section, and put a culvert over a draw which would have to be crossed by the grade mentioned, all at his own expense, except as to the material for the culvert, which the commissioners agreed to furnish, they would waive and relinquish the right to use the road in controversy; that he performed the work as agreed, at an expense of about $300, and gave a roadway around the northeast corner of his land for the purpose of connecting up with the section line roads; that when the work was completed the commissioners examined it and found it to be in accordance with the agreement, approved it, and then told him that he could close up the road in question; that the traveling public knew he was doing this work at the time it was being done and the purpose for which he was doing it, and that the plaintiff, as road overseer, and the public are now estopped to his closing the road. This contention, of course, must fail. The irregularity in the proceedings for laying out the road, in 1883, was cured by the subsequent use of the public for more than ten years, the right to which use was recognized and acquiesced in by the owner of the land in the construction of the fences along both sides of the road as above shown, and in permitting the use of the road by the public without objection for so long a period of time. The road having been thus established, it will remain a public road until vacated or abandoned, as provided by law. The judgment of the district court was right, and it is

Affirmed.

Letton, Rose and Sedgwick, JJ., not sitting.  