dissenting.
The majority opinion sustains the county’s claim to the road in question by adverse user for more than ten years. *846Plaintiff: does not admit that the road was ever established by user, but alleges that if such were the case, it could only be to the extent of the way used. It is clear that the road was never used the full legal width, but on the contrary, for many years, fences were maintained and crops raised on the land now sought to be appropriated. That being true, plaintiff is clearly entitled to compensation for the land not previously used by the public. Where a road is established in the regular way, the law fixes it at a certain width. Such action on the part of the county authorities gives a kind of color of right or title, and the rule of pedis possessio does not apply; but- when there has not been any legal establishment of a road, the rule does apply. The district court took that view of the case and allowed plaintiff for a strip of land twenty feet wide which had not been used by the public. In this I think the district court was right. All must concede that even the lawful establishment of a section line road does not cut off claims for damages for the land taken; and where a road is never legally opened, nor the full width fixed by law occupied for the full period of ten years, the right to damages for the land not used remains unimpaired. Plaintiff received damages for twenty feet of land never used except by herself in connection with and in the same manner that she had used her other lands. Her right to compensation therefor had never been surrendered or lost. I think the judgment of the district court should be affirmed.
Reese, O. J., concurs.