| Show THE RIGHT OF WAY 4 illie he question us aa to wheal er the be pub bas ae rights over the claims claim ot of ture 0 public domain was wae a question by E W mcdasie mc daaiel alty ty att aney for or savier county lu attorney Ito riney general toe corree corre pu epo d Is as follow bee ff to acknowledge receipt of your toot of recent date containing the fol elmr g firt first where a county road r public lands was lout t and used by the public for ten r prior flor to the application of a homelier to enter the same and upon oh poll tax had ha been expended or ara made under the direction of the I 1 supervisor visor but of which no formal on was ever made is there a latent t dedication to hold the same as t said aid homesteader you also bit a series eerie of questions relating to same ime subject nering di only in some 96 facts stated but all involving the n us as to what constitutes constitute a dedica of a public highway 91 answer to your first question in III necessarily furnish the USI yat in the other ether inquiries of your your attention is dito section 2477 of the revised 01 of r the united states enacted by MM in july 1866 providing as an fole right of way for the construction we ays over public lands not re jd for public uses is in hereby grant so see page volume 1 ot of the M of 1888 by the terms of the fore toft a grant but to made to the public of ato or way over public lands not re ved tor public uses there muaia be aaka U of this grant evidenced b by V T I 1 of a corporate body duly thereto y speaking as against the agn government the doctrine of re possession or title by prescript oan nave have no force and the acquits of the government for any number bars r s in the use of its land for highl W would be no evidence of dedication ita a part to determine what will natto to a dedication of a highway lU brence must be had to the provisions bode therein we find the follow section cion 2067 all roads Is etea asecion lSe are now used by the public and noi tte been declared to be highways by courts and municipal corpor a tafts ala mla within their respective or which may hereafter be so dedi red shall hall be deemed and taken to IK public high highways waTs see sec 14 2068 provides roads 9 laid out and nd recorded by maeroff of the county courts or municipal rations within their respective jur ons are public highways section subdivision 2 in prescribing the of county courts making it their ottay to cause to be surveyed viewed laid out recorded opened maintained tad AA worked such public highways highway as necessary tor public convenience f by a perusal dussl of the foregoing law lav it will W bo oge observed d that certain proceedings afe re made requisite on the part of the anty court in order to validate the ot of land for highways and which proceedings when had and properly recorded by the county clerk as provided in section 2073 are sufficient evidence of appropriation on the part of the county and of dedication on the part of 0 the government if the highways be oar public land in your communication you use the tw term county road I 1 it is assumed from this that the county court has in all roe to complied compiled with the law hereinbefore set net out if this presumption la in gramit I 1 am ot opinion that aoh such coin aliance operated as an acceptance of the dedication made by act of congress referred to and that thereby the public acquired an easement in such land of which it could not be divested by a patent abent of the united states issued to a homesteader tomes homesteader teader whose entry of said land was wait made subsequent to the acceptance ot such much dedication and that a patent issued in the case suggested by the united states would be held subject to the easement acquired by the public in the land for its use as a public highway in section 2066 it is in provided that all roada road laid out or erected by others than the public and dedicated or abandoned to the use of the public are ht highways eways A highway shall be deemed deemed and taken as an dedicated and abandoned to the use of the public when it has been continuously and unter used as a public thoroughfare for a period of ten years it will be seen that ten years is in the time fixed by statute after whiz which a dedication as against W all I 1 the world except t the he sovereign government will be conclusively presumed the use of a highway for any number of years less than ten whether expenditures endi tures of labor and poll taxes have been been made thereon or not could not avail to vest title in the public by adverse possession I 1 am of the opinion that the expenditure of labor and poll tax or the making of repairs upon roads are not conditions precedent to dedication and a road may become a public highway without the expenditure of either thereon and thaila highway except as an against the general government is dedicated and abandoned to the public when the same has been continuously and uninterruptedly used as a public thoroughfare for a period of not less than ten years p provided r ovidea the user has been adverse ana and not by the permission of the owner of the land 1 I am further of opinion that in order to the determination of what shall constitute a sufficient dedication the records of the county court must be consulted it it shall appear that a substantial compliance with the law governing statutory dedication has been had then such way shall be deemed and taken to be a public highway whether over public or other lands and that the countes coun tys right is in paramount as against the homesteaders in any c dee me where the land was entered subsequent to the countes coun tys appropriation as an hereinbefore suggested ug |
