Opinion
Opinion filed December 15, 1926.
Appeal from the District Court of Burleigh County, Jansonius, J.
Affirmed.
O'Hare Cox, for appellant.
"To establish a dedication, the user must be accompanied by acts which show it to have been claimed as a right and not by permission of the owner, such as working on it, keeping it in repair, and requiring the removal of obstructions. Jackson v. State, 6 Coldw, (Tenn.) 532. So where the owner of land grants a private right of way over his land to neighboring owners, the mere fact that it is used without objection by others going to and from their own lands does not establish a dedication. Silva v. Spangler, 5 Cal.App. 277, 43 P. 617." 18 C.J. 106.
"Where adjoining landowners agree to reserve an alley between their premises for their own use, the fact that the same for years is open to public use and that in several conveyances, it is described as an alley, will not make it a public easement." Illinois Ins. Co. v. Littlefield, 67 Ill. 368.
"The public cannot acquire a right of way by use for the prescriptive period, if the use is by license or permission of the owner." Jones, Easements, p. 375, ¶ 470.
Scott Cameron and Harold D. Shaft, for respondents.
"In an action to abate a nuisance caused by the interference of private individuals with a public highway, neither the county nor its supervisors are necessary parties." Sutherland, Code Pl. Pr. Forms, § 4365; Learned v. Castle, 67 Cal. 41, 7 P. 41.
"While the public may, as against the owner of the soil, acquire by prescription a right of way there must be an acceptance by the public authorities before the way can become a public road that they are obliged to maintain." James v. Kent Co. 83 Mo. 377.
"Every possession is `adverse' which is not in subservience to the title of another, either by a direct acknowledgment or an open or tacit disavowal of right on the part of the occupant, and it is in the latter case only that the law adjudges the possession of one to the benefit of another." 1 Words Phrases, 2d ed. 141, citing 42 Ind. App. 115.
Plaintiffs bring an action "for themselves and for the benefit of others similarly situated, to wit: all residents, citizens and taxpayers of the city of Bismarck, Burleigh county, North Dakota," to abate an alleged nuisance in the portion of block 62 of the original plat of the city of Bismarck which has been termed an "alley-way."
Defendants demurred to the complaint on four grounds: First, that the court had no jurisdiction of the subject-matter; second, that there is a defect of parties plaintiff; third, that there is a defect of parties defendant; fourth, that the complaint does not state facts sufficient to constitute a cause of action. The trial court, by its order, overruled the demurrer and the defendants appeal.
The first ground of demurrer is not well taken. This is an action to abate a nuisance alleged to exist because of interference with a public road and street. The complaint so describes this alley as will be noted later.
The second and third grounds are equally devoid of merit. Defendants claim the other property holders in this block, and the city of Bismarck, should be made parties. There is nothing in the complaint to show any other property holders in the block and in any event, where certain property owners have a special interest in the alley as means of ingress and exit for the rear of the dwellings, they may maintain an action without joining other parties. Defendant says the city of Bismarck may not want to insist this alley is a public road; but that has no weight. The complaint alleges the alley is a public road and the action of the city commission in the absence of a vacation is immaterial.
The fourth ground cannot be maintained. The objection is leveled in the main at paragraph 3 of the complaint, which alleges as follows:
"That in said block 62, original plat of the city of Bismarck, there is and ever since the year 1872 has been an alley-way running north and south through the center of said block, being a strip of land twenty feet in width, ten feet on each side of the center line of said block, and running from the highway on the north side of said block known as Thayer street south to the highway on the south side of said block known as Broadway; that prior to the 1st day of April, 1917, the said alley-way has become and was a duly and legally established and recognized highway or roadway, open and made use of as such by the general public since the year 1872, and included in a road district in said city of Bismarck."
As against the demurrer we take these allegations to be true. The complaint alleges the defendants have and are obstructing this road and maintaining the obstruction. Defendants allege there is no allegation in the complaint that any use of the alley made by them is "adverse and hostile." These words need not be used. The complaint shows a legal highway; shows the defendants are interfering with and obstructing it, and shows a determination to continue this.
The demurrer was properly overruled and the order is therefore affirmed.
CHRISTIANSON, Ch. J., and NUESSLE, BIRDZELL, and BURKE, JJ., concur.