Diers v. Ahrendt

Cornish, J.

This case involves a strip of ground, 20 feet wide, running from the northwest corner of the plaintiffs’ land a half mile south to the public highway, partly located upon plaintiffs’ quarter section. The strip is claimed to be a public highway, and would be a continuation of the disputed road, the subject of controversy in Burk v. Diers, p. 721, post. The facts in these two cases are substantially the same, except that in the instant case the road in dispute is along a section line, and there is some evidence that at one time the father of the defendant, when road overseer, did some *721 work upon it. These facts, however, should not. alter the conclusion arrived at. On the west' and south sides of defendant’s quarter section are established' public highways, and there is no need of a public highway at this point. If defendant’s father, as ,road overseer, did any work upon this road, it would hardly he notice to the plaintiffs that the public was claiming a right in it. Defendant’s father lived-immediately to the east of plaintiffs, and the evidence shows that they wanted this road for communication between the two .farms. It is not shown that plaintiff Robert Diers knew of the work being done. He swears he did not. If he had seen Ahrendt, Sr., working on the road, he would naturally have thought that he was doing it for his own convenience.

• The trial court found for the- plaintiffs- in this ease, and we are of opinion that its judgment should be

Affirmed.' Morrissey, C. J., dissents. Rose, J., not sitting.