(dissenting): With reluctance I find I am unable to
concur in the court’s decision. The opinion perhaps is sound from the standpoint of public safety, but the basis of liability is not the public safety because at common law there was no liability on the part of the state arising by reason of the state’s failure to provide for public safety. Therefore, the logic of the court’s opinion fails because it has no foundation for its creation. The only liability in this case must be strictly statutory in origin and all other theories of liability fall if the fundamental foundation does not support them.
At common law no right of recovery against a state was created by reason of defects existing in a state highway. The construction and maintenance of public highways are the exercise of a governmental function, for the improper discharge of which no liability exists except as created by statute. Therefore, such statutes are in derogation of the common law and are conditional. They cannot be extended beyond the statutory limitations or enlarged by construction. The liability is not founded on the law of negligence but is created wholly by legislative enactment. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762; Gorges v. State Highway Comm., 135 Kan. 371, 372, 10 P. 2d 834.) Unless the road involved is a state highway no liability is created. (Summerville v. State Highway Comm., 139 Kan. 530, 32 P. 2d 224.) The rule requiring strict limitation has been applied by most of the states. For recent examples, see: Ellis v. Cannon, 113 Vt. 511, 37 A. 2d 377; Goodrich v. County of Kalamazoo, 304 Mich. 442, 8 N. W. 2d 130; McManus v. Jarvis, 128 Conn. 707, 22 A. 2d 857; Fann v. State Highway Department, 167 S. C. 84, 165 S. E. 785.
The state is not an insurer of the safety of travelers on its highways. Its liability arises only by reason of its consent to be sued and, therefore, parties seeking recovery must bring themselves unquestionably within the prescribed and limited consent of the state. (See: Barker v. Hufty Rock Asphalt Co., 136 Kan. 834, 836, 18 P. *5462d 568; Parsons v. State Highway Comm., 146 Kan. 476, 72 P. 2d 75; and, also Boskovich v. King County, 188 Wash. 63, 61 P. 2d 1299.) Such is the rule regardless of the fact that we have a statute in this state to the effect that general statutes are to be liberally construed to promote their objects even though such statutes be in derogation of the common law. (G. S. 1935, 77-109.)
Having the foregoing general principles in mind, consideration must be given to the intent of the legislature in fixing liability on the part of the state highway commission. The statute provides:
“Any person who shall without contributing negligence on his part sustain damage by reason of any . . . defect in a state highway, . . . and for any damage so sustained the injured party may sue the state highway commission, . . (G. S. 1935, 68-419.)
In the case of Payne v. State Highway Comm., supra, this court, in substance, held that G. S. 1935, 68-406 must be construed in pan materia with the above-quoted statute. Otherwise there would have been no statutory basis for the result reached in the Payne case. A contrary result was reached in the case of Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134, which was cited in the Payne case, and which construed two statutes as not being in pari materia. Consequently, the basis for decision in the case of Reading Township v. Telfer, supra, was not present in the Payne case and we clearly held in such case that no liability could arise against the state highway commission unless under the authority of G. S. 1935, 68-406, the highway had been opened for travel. Therefore, compliance must be made with all the provisions of-68-406 before liability arises under section 68-419. Consequently, we should determine what must appear in order to show that compliance has been made with section 68-406. Such section provides:
“That the state highway commission shall designate, adopt and establish and may lay out, open, relocate, alter, vacate, redesignate and re-establish highways . . .” (Italics supplied.)
Designation and adoption by resolution are only the formal paper requisites preliminary to establishment. Establishment, however, which is a requirement of the statute, is a different element from designation. Such is true also of the opening of a highway. Before discussing the meaning of such terms, it should be noted that the only party or commission which is given any statutory power to make a designation of a highway is the state highway commission. It is equally true that the only party or body which has the right *547to establish or open a state highway is the same commission. No other person or .agency of the state has any authority whatever to do so.
The word “establish” carries with it usually the inference, at least, of permanence. In Robinson v. Swing et al., 70 Ohio App. 83, 36 N. E. 2d 880, the court adopted, the following definition from ,the Oxford English Dictionary:
“To fix, settle, institute, or ordain permanently — to set up on a secure basis, to render stable or firm.”
See, also, 2 Words and Phrases, 2d series, p. 323, citing Hurd v. City of Fairbury, 87 Neb. 745, 128 N. W. 638, 640. The words “establish” and “established” are not synonymous with the word “locate.” (See State, ex rel. College v. Irvine, 14 Wyo. 318, 84 Pac. 90, 106, 107.) In defining the word “established” as applied to an existing legal organization, this court has cited, with approval on two occasions, the following statement from State, ex rel, &c. v. Rogers, 107 Ala. 444, 453:
“It is as often employed to signify the putting or fixing on a firm basis, of putting in a settled or an efficient state or condition, . . .” (See: Armstrong v. George, 84 Kan. 248, 251, and State ex rel., v. Board of Education, 111 Kan. 598, 600.)
See, also, 15 Words and Phrases, Perm, ed., p. 155 et seq. Those interestéd in the etymological meaning of the word will find that it differs from the words “construct” and “design.” (See: Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P. 2d 133, 140; and Village of Brockport v. Green, 79 N. Y. S. 416, 418, 39 Misc. 231.) In applying the meaning of the term in connection with the establishment of roads, it has been held that “location” is not the equivalent of “establishment.” (See Dickey v. Maysvill W. P. & L. Turnpike Co., 37 Ky. [7 Dana] 113, 125.)
Many shades of meaning have been given the word by judicial construction but there is unquestionably much legal precedent to-warrant construing it as meaning — to settle and confirm in a permanent, efficient state or condition.
In the case of Robinson v. Swing et al., supra, it was held as follows:
“The use of this term 'establish’ in the statute implies that some affirmative act on the part of the commissioners should intervene before liability is created.” (p. 885.)
Perhaps such is sound law and possibly this court should hold *548that before a highway can be considered as having been established, it is necessary that the only body which has authority to establish it, to wit: the state highway commission, must, by affirmative action, or at least by some overt act on its part, have indicated that the highway had been established. It should not be necessary in such connection to show that the highway had been established and opened by the adoption of a formal resolution to such effect. To so require would put too narrow an interpretation upon' the statute. (See Cowley County v. Johnson, 76 Kan. 65, 90 Pac. 805.) Even if affirmative action is not necessarily required a highway should not be considered as having been established by the commission if no part of the project had been completed as anticipated. A highway might be considered as established if acceptance had been made of substantially all of the work incident to the completion of the highway and the state highway commission, not others, had indicated in any manner that the project had reached a degree of completion prerequisite to the actual opening of the highway for travel purposes. Surely it was never the intent of the legislature that liability should arise against the state in connection with road building projects before their completion and before the highway commission indicated in any manner that such road projects were a part of the state highway system.
As before indicated the opening of a highway is a different act from either designation or establishment. In the case of Curtis v. Pocahontas County, 72 Iowa 151, 33 N. W. 616, the Supreme Court of Iowa held that a petition seeking to have a road opened for travel was insufficient for the purpose of having a highway established and that such a petition did not vest the supervisors with any jurisdiction in the matter and that all acts done by them under such a petition were void. In the case of Wilcoxon v. San Luis Obispo, 101 Cal. 508, 35 Pac. 988, it was held:
“The term 'open’ refers to the throwing open to the public what was before appropriated to individual use and the removing of such obstructions as exist on the surface of the earth rather than any artificial improvement of the surface.” (p. 510.)
See, also, 29 Words and Phrases, Perm, ed., p. 507 et seq.
In the case of Valentine v. City of Hagerstown, 86 Md. 486, 38 Atl. 931, 932, it was held that streets cannot be considered laid out and opened until there has been a formal acceptance of them by ■ authorities of the town according to law, though they may have *549been, since an alleged dedication, used as streets by the owners of property and may have been generally considered streets of the town. See, also, Ryan v. Township of Royal Oak, 289 Mich. 469, 286 N. W. 793. In the case of Matter of City of New York, 192 N. Y. 459, 85 N. E. 755, it was held that a new street was not “open” within the statute until there had been an actual physical opening, and in the case of Johnson & Co. v. Cox, 196 N. Y. 110, 89 N. E. 454, it was held that a road, intended to take the place of a discontinued thoroughfare, was not “opened” until it was actually and physically opened so that it was capable of public use. (See, also, O’Neill v. Hemenway [La. App.] 3 So. 2d 210.) The opening refers to the removing of obstructions that may exist on the surface of the road, or to the installation of signs indicating that the road is open for travel. An opening of a road certainly would necessitate the removal of barricades at each of its extremities provided they were present and such removal necessarily would have to be made under and in furtherance of the authority which is vested solely in the state highway commission by the plain language of the statute. A stranger could not knock down the barricades and thus obligate the state.
To permit sight-seers who drive around the ends of barricades,' workmen employed by road and bridge contractors, farmers living in the vicinity, and others who choose voluntarily to use a road, to establish and open it for travel as a state highway so that liability develops against the state, when the right to designate, establish and open a highway is fixed by statutory authority only in the highway commission, would be equivalent to permitting such parties to usurp, seize and hold the statutory rights of the commission without the consent of the state. It would permit such parties to extend the consent of the state to be sued far beyond the expressed legislative intent. As was said in Barker v. Hufty Rock Asphalt Co., supra:
“. . . The legislature may give such consent, but before it can be regarded as having waived its sovereign right of immunity, it must be made in express terms so clear as to leave no doubt of the legislative purpose to give the consent. (Asbell v. State, 60 Kan. 51, 55 Pac. 338; State v. Appleton, 73 Kan. 160, 84 Pac. 753; Nation v. Tulley, 86 Kan. 564, 121 Pac. 507; Garrity v. Board of Administration, 99 Kan. 695, 162 Pac. 1167; Construction Co. v. Board of Administration, 105 Kan. 291, 182 Pac. 386; McGraw v. Rural High School, 120 Kan. 413, 243 Pac. 1038.) [p. 836.]
“ ‘As we understand the rule relating to the immunities attaching to sov*550ereignty, such attributes are never to be considered as waived or surrendered by any inference or implication. The surrender of an attribute of sovereignty being so much at variance with the commonly accepted tenets of government, so much at variance with sound public policy and public welfare, the courts will never say that they have been abrogated, abridged, or surrendered, except in deference to plain, positive legislative declarations to that effect.’ (Construction Co. v. Board of Administration, 105 Kan. 291, 293.)” (p. 837.)
The court’s decision sets forth that the road project as shown by the stipulation, contemplated that the same when completed would be surfaced with black-top. The work on the contract for the surfacing of the project, however, was not completed until long after the catastrophe occurred and was not accepted until November 6, 1943. At the time of the misfortune both the east and west extremities of the project were barricaded and signs had been posted thereon designating that the project was closed and that traffic was prohibited. Such conditions had existed at all times, at least since the occurrence of the flood. Under the circumstances as disclosed by the record, there is nothing to indicate by implication that the state highway commission or anyone acting in its behalf had established or opened the project upon a permanent basis as a state highway. The evidence is persuasive to the contrary because of the barricades at both ends and because of the absence of signs directing traffic upon the project and the presence of signs directing traffic upon the highway. The surfacing work had not been started and in summary the project simply had not been completed. The fact that the project might have been used perhaps more or less extensively at one time by travelers before the flood would not give it that degree of permanence which establishment implies and it should be observed that even if such a conclusion might be developed by implication, nevertheless the implication would have been based upon conduct by others rather than upon conduct by members or representatives of the state highway commissjon.
We have in the present case an instance wherein the plaintiffs seek to show that the project was established and opened by implication from the conduct of others in direct contradiction to the expressed intent and desire of the highway commission. Because of the rule as to statutory authority such a possibility should not be given judicial approval. How could such a contention be sustained under the rule that before the legislature can be regarded as hav*551ing waived its sovereign immunity, it must be waived in express terms so clear as to leave no doubt of the legislative purpose to give such consent? It is obvious, beyond factual controversy, that the state highway commission, in the performance of its governmental functions incident to the establishment and opening of a state highway, had not opened the project as a state highway in the present case. The state highway commission should be clothed with the authority to say when and where a state highway has been established and opened to the public and our statute so provides. The omission of any action whatever indicating the performance of such governmental functions should not be construed as equivalent to the exercise thereof. The occasional use of a project without objection by representatives of the highway commission is not sufficient to show that it has been established or opened. The mere maintenance of a portion of a road by employees of the commission is likewise not sufficient.' (See Summerville v. State Highway Comm., supra.)
The case of Payne v. State Highway Comm., supra, is not controlling in this case because in the present case no highway had been established — an incomplete project only existed. Such was true also in the Payne case but the opinion did not attach any significance to the meaning of the word “establish.” In that case it was not necessary to do so because this court held that the project in such case was not open to the public for travel and that reason alone was sufficient upon which to deny liability on the part of the commission. It is possible to conjecture a ease wherein a highway might be open to travel by implication if it had been established and nothing remained to be done in connection with the construction and establishment of the highway except to open it for travel. But we do not have such a case before us. The practical effect of the court’s opinion is that the highway commission, in order to show that a project is not a state highway, must erect adequate barricades or signs at every point where a public road enters, a project no matter how incomplete it may be in order to avoid liability being established against the state by the voluntary use of the project on the part of third parties. From the standpoint of public safety it would be necessary that such barricades or warning signs be maintained at all times in such condition that they would be readily visible to the traveling public. So far as the traveling public js concerned, the effect of a warning sign never having been erected *552is the same as it would be in case such a sign had been erected and had been knocked down or was obstructed by weeds. To carry lia- ■ bility to such an extent would in effect make the state highway commission an insurer of the public safety in cases wherein contributory negligence is absent and such is not the law. (See Phillips v. State Highway Comm., 146 Kan. 112, 68 P. 2d 1087.) If inquiry should be made again as to what happens to the element of public safety in the event the commission fails to erect any barricades or warning signs of any kind at any point on a project, the answer would still remain — there would not be liability on the part of the state at common law for such omission and it could not arise by implication from a statute unless the immunity of the state was clearly waived by such statute. The legislature can provide a standard of conduct which would assure public safety and be a basis of liability in accidents occurring on road projects but it has not done so.
While this is not a case which depends for decision upon whether the project had been established by use or prescription as a state highway, nevertheless the general law relating thereto is enlightening. From 25 Am. Jur. 344, § 9, the following is quoted:
“Generally — Highways may be established by dedication, by prescription, or by the direct action of the public authorities.”
As before stated, dedication alone is not sufficient in this state. In the present case there had been no action by the public authorities establishing the highway except the passing of the resolution of dedication and the partial construction of the project. The remaining method — by use or prescription — requires that the highway be used generally by the public and that its use be continuous, uninterrupted and exclusive throughout the prescription period. If the use of the highway is interrupted, prescription is annihilated. (See 25 Am. Jur. 347, § 12.) In Kansas, before a highway can be opened by prescription, it must have been used as a public highway for at least fifteen years. (State v. Horn, 35 Kan. 717, 12 Pac. 148.) There is no evidence in the present case that the project was being used as a state highway by the public generally at any time sub-, sequent to the occurrence of the flood. The flood occurred on April 29, 1942, and the accident about seventy days later — on July 9, 1942. During such period, the evidence clearly develops that the public was not using the project as a state highway. The project in the present case never had been established in any of the three *553ways prescribed by law and had not reached the status of being a state highway. Consequently liability on the part of the commission did not exist.
The demurrer to the evidence should have been sustained.
Harvey, C. J., concurs in the foregoing dissenting opinion.