The court below, trying the case without a jury, found as a fact that ever since 1880 the road in question “has been used by the public as such, and kept in repair and worked as such by the public authorities,” and the evidence fully sustains that finding. This was sufficient to constitute it a public highway, under 1878 G. S. ch. 13, § 74, as amended by Laws 1879, ch. 51.
But appellant claims that because, prior to the beginning of that period, the county commissioners began proceedings to lay out the highway, and such proceedings went no further than a verdict in 1877 on an appeal by this appellant to the district court, the proceedings are to be deemed still pending, and their pendency prevents the operation of that statute. The statute makes no such exception to its operation, and, indeed, we think one of the conditions the legislature had in view, in passing it, was that there were then, and in future would bé, a great many instances in which proceedings to lay out highways were, or would be, defective or incomplete, but in which, notwithstanding such defective or incomplete state of the proceedings, the public would use, keep in repair, and work the road for the time specified. The pendency of the proceedings, if they are to be deemed as pending, had no such effect as claimed.
The documentary evidence objected to could have no possible bearing upon the finding above quoted, and so could not prejudice.
This court has always recognized the distinction between an ordinary commercial railway and a street railway, in respect to laying them upon a street. The former imposes an additional servitude on the street, while the latter, being only a mode of using the street for legitimate street purposes, does not.
Order affirmed.
Vanderburgh, J., took no part in this decision.(Opinion published 55 N. W. Rep. 116.)