The Arvada enterprise., 1913-12-04
OPINION.


The rights of the parties to this ac-
ton will be determined solely upon the
questions of law submitted to the
Court, and considering the statements
of facts, as announced in open court
by counsel, most strongly in favor of
the plaintiffs. This being an action
for a temporary injunction, no testi-
mony whatever was introduced by
either party. So far as the regularity
of the petition upon which this road
was finally declared public highway
is concerned, / think the law is well
settled that, after a lapse of many
years, the Courts will not inquire into
the regularity of the petition, but only
look to it for the purpose of ascertain
ing the true course; in other words,
if the petition was acted upon favor
ably, the Court will inquire only with
reference to its contents. This peti-
ton was under a statute permitting
county commissioners to declare open
a highway, when signed by all of the
abutting landowners. Nothing in the
statute requires the commissioners to
mark and lay out road, in this kind
of proceeding, other than to declare
the road a public highway according
to the terms of the petition and the
accompanying plat. The owners who
signed the petition, and their grantees.
are bound to know the consequences of
their own acts, and to know the cor
rect boundaries of their land so taken.
The municipality would have been in
very different position had this road
been opened under the statute requir-
ing viewers to be appointed for the
purpose of marking and laying out the
boundaries of the road, for in that case
the viewers may be regarded as the
agents of the county authorities and
the public would have right to rely
upon the boundaries so marked as the
true course of the road
Insofar as the question Of whether
or not the statute of limitations runs
against a municipality in the matter
OF highways | find wide conflict of
authorities. | have carefully read the
briefs and authorities by counsel, in
addition to others discovered in a
search on my account.
The latest case on this question is
that of Town of West Seattle versus
West Seattle Land & Imp. Co., report
ed in so Pac. $40. At page $50, the
Cupreme Court of Washington said:
"The general rule is that party cam
not acquire title by adverse possession
to property held byy n municipality in
it's governmental capacity for public
purposes. The rule is thus stated In
Elliott on Roads & Streets, I'd. ed. SS3:
'The doctrine that highways cannot be
lost by adverse possession Is supported
by other well settled principles of the
law. There can be no rightful, per
manent private possession of a public
etr hSt q ON
punishable by indictment. Each days
continuance thereof is an indictable OF
Tense, and it follows, therefore, that no
right to maintain 1t can be acquired
by prescription. Municipal corpora
tions have no power to alien or dis-
pose of their streets for any purpose
inconsistent with their use as high
WAYS 1t would be a grave reproach to
the law to permit a wrong -doer-one
who Is daily violating the law OF the
state itself-to take advantage or ms
own wrong and that of the municipal.
ity, and by such indirect and wrongful
means obtain right to the street
which the corporation Is prohibited
from directly granting or destroyihG'
Getting Dillon on Nun! Corp, and Raj
ston v Westons, as w. Va. BAD we
hold on both principle and authority
that a municipality is not barred or IT'S
rights to remove an obstruction from a
public street by mere lapse Of time,
some other element of estoppel must
enter into the case. Mere lapse OF
time and the payment of personal taxes
on the improvements are here relied on
These are insufficient !,
The gist of this controversy may be
found in Norrell V. Augusta II. & Il.
Co., 116 Ga. 315, where the Court con
cludes with this language:
after a careful consideration OF the
question whether prescription VIII run
against a municipal corporation so that
advers. possession Of part of street
NAV bar the city OF the right to re.
cover 10. we are Of the opinion that
The better view is that prescription
does not run against municlpal cor
poration in regard to land held oy II
for the benefit of the whole pubic
N nile 1T may be entirely proper to ap-
Div the doctrine of adverse possession
and prescription to city In matters
in which 1t is concerned IN chpuSi.s
,,bich is nriyate, rather than govern
mental in its nature, we think that ads
verse possession by an indlVlduai OIL