Roche Realty & Investment Co. v. Highlands Co.

WHITING, J.

(dissenting). As- I read the evidence in this case, it appears absolutely uncontradi-cted 'that the owner of the quarter section of land over which the claimed highway runs, presumably with a view of thereafter platting such quarter section of land, laid out a -highway running across said quarter section, the sam-e being a continuation of the -then and now Ma-in street of the city of Aberdeen and extending in a line exactly conforming with such street. This -highway was marked out by the -planting of two rows of trees -on- either side thereof. It was opened to the public travel, and, to keep such travel within the bounds thereof, wires were strung along parts of such highway. The public did travel, some over -the whole length thereof, and some leaving this highway to -cut across tire open pra-inie, and thus save distance to the objective point. The proper road officials did more -or less work along such strip of land, and among other things done, placed a wooden -culvert -across -such uo-acl where it -crossed a low place. There is absolutely no evidence upon which to justify any holding that -this strip- was laid o-u't as a private way. It did not extend to any land -owned by the owner of this quarter section. Every particle of evidence points' to- the intent, upon the part of tire owner of this quarter, that such s-trip was f-or the use of the public as a highway. Thus there was, under all the authorities as T read them, a complete -dedication and acceptance thereof. That being-true, no change of min-cl on the part of the then- owner of the quarter section., -nor any .-desire -on the part of -subsequent purchasers to destroy this easement vested in the public, could destroy such easement.

CORSON, J. I concur in the views expressed by Mr. Justice WHITING.