Hatch Bros. v. Black

Brard, Justice.

This action was brought by the plaintiff in error against the defendants in error to restrain defendants • from obstructing an alleged highway, and for damages for preventing plaintiff from passing over said road with its sheep. Defendant denied that the road was'a-public highway, and filed a cross petition claiming damages for trespass on their lands by plaintiff. The case was tried to a-jury, resulting in a verdict and judgment in favor of defendants and against plaintiff for $916.04 and costs, from which judgment plaintiff brings error.

It appears that on April 27, 1912, defendant, Joseph A. Black, made a homestead entry on certain lands in section 24, township 13 north, range 121 west, in Uinta county; and that on July 30, 1912, defendant Joseph Black made a homestead entry on certain other - lands in said section. That the road in question extended across a part of the said homestead entries of defendants, and extended a number of miles on either side of said lands. That in 1912 or 1913 defendants fenced their lands, and during the years 1912, 1913, 19x4 and 1915^ cultivated a part of said lands jointly and were equally interested in the crops raised thereon.

They alleged in their cross petition that during said years plaintiff had maliciously and repeatedly driven its sheep upon and across said land, injuring and destroying the crops of grain growing thereon to their damage in the sum of two thousand dollars, and claiming exemplary damages in the sum of twenty thousand dollars. Plaintiff replied, joining issue on the matters pleaded in the cross petition.

The plaintiff appears to have abandoned its claim for damages, and on the trial sought only to have defendants enjoined from obstructing the road and from preventing plaintiff free passage thereon across defendant’s lands. The court denied an injunction and gave judgment as above stated.

Many rulings of the District Court are assigned as error, but they may be grouped and considered under a few heads. (1) Over the objection of plaintiff the court instructed the jury “that under the laws of the State of Wyoming, the only publicly traveled roads in Wyoming, not officially established, declared to 'be public highways, are those designated as highways on government maps or plats in the record of a land office of the United States in said State of Wyoming.” And in the next paragraph of the instructions the jury was told that “there being no evidence to the effect that said road was established in some manner recognized by the laws of the state, the alleged trail or highway over and upon the homesteads of the defendants, is not a regularly constituted public road or public highway and cannot by you be so considered.” The plaintiff in a number of instructions, couched in different language, requested the court to instruct the jury to the effect that by the Act of Congress of July 26, 1866 (14 Stat. 253, C. 262, U. S. Comp. St. 1916, Sec. 4919) the right of way for the construction of highways over public lands, not reserved for public use, was granted; and that such grant might be accepted by the public without action by the county authorities, by the public generally traveling the same as a public road, intending thereby to appropriate and use the same as a public highway; and if the jury found from the evidence, that the road in question had been so used by the public for a great number of years prior to defendants’ homestead entries, and while the same was public lands of the United States, not reserved for public use, such use by the-public would constitute it a public highway, and the public would have the right to travel the same without interruption or molestation on the part of defendants. The court refused to so instruct, to which refusal plaintiff excepted. The statute relied upon by plaintiff is Section 2477, U. S. Statutes, 6 Fed. St. Annotated, p. 498;. U. S. Comp. St. 1916, Sec. 4919. “The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.” (Act of July 26, 1866.) The grant is unconditional and contains no provision as to the manner of its acceptance. We think it is quite well settled that when land is granted for a right of way for a public highway, the grant may be accepted by the public without action by' the public authorities. The continued use of the road 'by the public for such a length of time and under such circumstances as to clearly indicate an intention on the part of the public to accept the grant has generally been held sufficient. More especially so if it is made to appear that to interrupt the use would inconvenience the public. It must be borne in mind that it is not -a question of the establishment of a highway by prescription which is here in question, but..the acceptance-of a grant; and therefore it does not depend so-much on a definite length of time of use as upon the character, of the use,.taking‘into- account the needs and convenience .of the public, as manifesting an intention on its part to accept the grant. The Supreme Court of Colorado in Sprague v. Stead, 56 Colo. 538, 139 Pac. 544, after quoting the U. S. Statute, said: “This was an express,dedication for a right of way for a road over the land belonging to the government not reserved for public use. The acceptance of such grant while the land was a part of the public domain may be effected by public use. An appropriation in this manner is made with the consent of the owner previously given, and when confined to a reasonably certain and definite line creates an easement for the purposes of a highway, and subsequent entrymen and claimants take such land subject to that easement.” Citing Montgomery v. Somers, 50 Ore. 259, 90 Pac. 674; Murray v. City of Butte, 7 Mont. 61, 14 Pac. 656; McRose v. Bottyer, 81 Cal. 122, 22 Pac. 393; Bequette v. Patterson, 104 Cal. 282, 37 Pac. 917; Wallowa County v. Wade, 43 Ore. 253, 72 Pac. 793; Van Manning v. Deeter, 78 Neb. 284, 110 N. W. 703. (See also Okanogan County v. Cheetham, 37 Wash. 682, 80 Pac. 262, 70 L. R. A. 1027; Hughes v. Veal, et al., 84 Kan. 534, 114 Pac. 1081; Doyle v. Chattanooga, 128 Tenn. 433, 161 S. W. 997, Ann. Cases, 1915C, 283; Riley v. Buchanan, 116 Ky. 625, 76 S. W. 527, 63 D. R. A. 642, 3 Ann. Cases, 788, and notes.) By an Act of the Territorial Legislature approved December 9, 1869, Comp. Laws 1876, Ch. 102, Sec. 1, it was enacted that, “All roads within this territory shall be considered public highways, * * * *• which have been, or shall hereafter be, used and traveled by the public, so that the same would, according to the-course of the common law, be deemed public highways.” Said Chapter 102 was amended in 1877 (S. L. 1877, p. 135) giving the board of county commissioners power to adopt and appropriate to county and public use any road or route publicly traveled, and when so adopted and appropriated was declared to be a public or county road to all intents and purposes: By C'h. 99, S. U. 1886, said Chapter 102 as amended was repealed, and it enacted that “no county road shall be hereafter established * * * * except by authority of the county commissioners of the proper county. Provided, however, that nothing herein contained shall be construed to affect the validity of any act done or right accrued under and ’by virtue of the law hereby repealed.” By Section 1, Chapter 69, S. B. 1895, all roads that were designated or marked as 'highways on government maps or plats in any land office of the United States, and which have beeir publicly used as traveled highways, and which have not been closed or vacated by order of the county commissioners, were declared to be public highways; thus recognizing as public highways roads which the government surveyors found to be traveled and used as such at the time of the survey, and without action by the county commissioners. The government survey of this land was shown to have been made prior to January 6, 1876. We discover nothing in these several statutes, as we understand them, prohibiting the public from accepting the grant of the right of way; but on the contrary, they appear to recognize that right.

The decisions are not harmonious as to the time the public use must continue to constitute an acceptance of the grant by the public. Some courts holding that it must be for the same length of time as would be necessary to acquire a right of way by prescription over privately owned lands, while others hold that the length of time of the user is not controlling and may be for a shorter period. The latter holding, we think, is supported by the better reasoning. Title or right by prescription implies adverse user; while we are here considering a case where the use is not adverse, but the appropriation and use of the land is with the consent and by an express grant of the owner. Time, therefore, becomes material only as an element to be taken into consideration together with the character of the use and the necessities or convenience of the public in determining the question of the acceptance of the grant. Counsel for defendants cites and places much reliance upon the case of Commissioners v. Patrick, 18 Wyo. 130, 104 Pac. 531, 107 Pac. 748. But the court was there considering the question.of the establishment of a highway over private lands ■by prescription, and the question of the federal grant was not involved in the case. In this case there was evidence introduced to the effect and tending to prove that the road in question had 'been traveled and used by the public as a public highway as early as 1875 or 1876, and from that time continuously until it was closed by defendants in 1912 or 1913. *' That those using the road had done considerable work thereon by making dugways, constructing bridges, etc., one witness testifying that he has spent about five hundred dollars on it about 1891. It was a question for the jury to determine, upon proper instructions, whether the grant of the right of way had been accepted by the public, prior to defendants’ homestead entries, so as to establish the road as a public highway which the public had a right to use and to have remain open and unobstructed. Whether such an acceptance of the grant by the public would impose upon the county the burden of keeping the road in repair is not involved in the case, and has not been considered. We think the court erred in giving the instructions complained of, and in refusing to instruct, in substance, as requested by plaintiff.

■ 2. Over the objection of plaintiff, the defendants were permitted to introduce evidence of statements-made by persons in charge of certain of the sheep, claimed to have damaged the crops, as to whom the sheep belonged, and by whom such persons were employed, without other evidence of the agency of such persons than their declarations. That was error. Before statements or declarations of an alleged agent are competent and admissible in evidence against a principal; the agency must be established; and it is a familiar rule of evidence that agency cannot be established by the declarations of the alleged agent.

3. It is contended that there was no competent evidence of the amount of damages, if'any, suffered by defendants. The evidence consists of testimony that the crops for the years 1912, 1913 and 1915 were damaged. We fail to find any evidence of the value of the crops for 1912. For 1913 the defendant, Joseph Black, testified that he estimated the crop for that year at seven hundred bushels of grain, while on practically the same ground in 1914 they had 1,800 bushels ; 'but there was no evidence of the value of the grain other than his statement that the damage to the crop was $500.00. For 1915 he testified that the damage to the grain was $700; that they had a good prospect for a crop. How a jury could arrive at the correct measure of damages from the evidence, we are unable to see. The measure of damages for injury to, or destruction of crops is the value of .the crops in the condition they were in at the time and place of the injury or destruction. (Lester v. Highland Boy Gold Mining Co., 27 Utah, 470, 76 Pac. 341, 101 Am. St. Rep. 988, 1 A. & E. Ann. Cases, 761; Teller v. Bay and River Dredging Co., 151 Cal. 209, 90 Pac. 942, 12 L. R. A. N. S. 267, 12 A. & E. Ann. Cases, 779, and note.) The amount of such damages is for the jury to determine from the facts proven, and not from the opinion of the parties or witnesses. “The reason for this rule is that it is the province of the jury to estimate the damages upon the facts as shown by the evidence, and the only end accomplished by the admission of such opinions and conclusions is the substitution of witnesses for jurors and of theories for facts.” (4 Enc. of Evidence, 12 et seq., and cases there cited.) As the judgment will have to be reversed and the case remanded for a new trial, it is proper to call attention to the fact that the jury was not instructed as to the measure of damages. Such instruction was necessary to a correct assessment of damages if any were awarded. Some other matters have been assigned as error,, but we do not deem them important and they will not likely arise upon another trial.

For the reasons stated, the judgment of the District Court is reversed and the case remanded for a new trial.

Potter, C. J., concurs.

Reversed.

Scott, J., did not participate in the decision.