State v. Walters

Norton, J.

At the January term, 1876, of the circuit court of Atchison county, the defendant was indicted for obstructing a public highway. At the May term, 1876, of said court, he was duly arraigned, pleaded not guilty, and a trial being had, was convicted. The evidence on the.part of the State showed that the road in controversy had been traveled since 1850; that in 1860 it was thrown about 150 yards south by a fence built by one Pebly; that from 1860 to December, 1875, it had been used continuously by the public as a road, and an overseer appointed over it, who had repaired it and kept it in good condition; that at said last mentioned date the defendant built two fences across it and made a cattle lot, whereby the road was completely obstructed. Upon a trial of the cause defendant was found guilty and his punishment assessed at a fine of $25.

It is not claimed that the road which defendant is charged with obstructing was ever located, laid out and opened under the statute providing for locating and opening public roads and highways. The evidence on the part of the State tended to show that the x’oad in question had become such by long public use, and from its having been *465 worked and kept in repair as a public road by road overseers duly appointed from 1860 to 1875, when it was obstructed by defendant as charged in the indictment. We are asked to review the action of the trial court on the ground of its refusal to instruct the jury, that unless they believed the road had been used as such by the public continuously and uninterruptedly by a claim of right adverse to the owner /or a period of twenty years or more, said owner being in continuous possession of said land, they would find defendant not guilty. This instruction the court refused, and directed the jury that if they found that the road had been used and traveled as such by the public, and had been claimed, recognized, used, worked and repaired when necessary as a public road for the period of ten years or‘more before the alleged obstruction, such acts of use and claim by the public would establish a legal road, and that if defendant obstructed the same as charged, they would find him guilty.

The public may acquire the right to the use of a road or easement over the land of another, when such road has been established in accordance with statutory enactments on land condemned for that purpose, or when the owner of the land has by some unequivocal act made a dedication of it to the public, or from long use of a road as such by the public, acquiesced in by the owner, and adverse occupancy and use of the same for a period of time equal to that prescribed by the statute of limitations for bringing actions of ejectment. This last method of acquisition by the public of a right to the use of a road is clearly recognized and stated in the cases of the State v. Young, 27 Mo. 260 ; Onstott v. Murray, 22 Iowa 457 . Following the principle announced in these cases, the trial court was justified in refusing the declaration of law asked by defendant and in giving the instruction it did. Judgment affirmed.

All concur.

Affirmed.