Public Highways and Roads

“A public highway may be established by prescription by continuous adverse use thereof by the public for a period of 10 years.” Plischke v. Jameson, 180 Neb. 803, 146 N.W.2d 223 (1966); Kunz v. Bornemeier, 170 Neb. 463, 102 N.W.2d 842 (1960). See Breiner v. Holt County, 7 Neb.App. 132, 581 N.W.2d 89 (1998).

“Public roads” are defined in Neb.Rev.Stat. § 39-1401 (Reissue 1993) as “all roads within this state which have been laid out in pursuance of any law of this state, and which have not been vacated in pursuance of law, and all roads located and opened by the county board of any county and traveled for more than ten years.” Under this definition of “public roads,” neither the obligations of a sanitary and improvement district nor those of a county depend upon construction or ownership. Scherer v. Madison Co. Comm’rs, 247 Neb. 384, 527 N.W.2d 615 (1995). In the absence of abandonment, vacation, or relinquishment of the roads within a sanitary and improvement district, the county retains the statutory authority to supervise, control, improve, and maintain these roads. Sanitary and Imp. Dist. No. 2 of Stanton County v. County of Stanton, 252 Neb. 731, 567 N.W.2d 115 (1997). The lack of maintenance does not establish that the county does not claim the road is public, and a traveler need not assume that the lack of public maintenance is an indication that the road is not for public travel. Breiner v. Holt County, 7 Neb.App. 132, 581 N.W.2d 89 (1998).

“The law is well established that it is not possible to acquire title to a public road against a county by adverse possession.” Plischke v. Jameson, 180 Neb. 803, 146 N.W.2d 223 (1966). See Krueger v. Jenkins, 59 Neb. 641, 81 N.W. 844 (1900), where the court stated: ‘Title to a part of a country road can not be acquired by adverse possession.’ See Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996) (railroad property acquired by private sale and held in fee simple is subject to adverse possession).

Where the basic plats contained the usual symbols for unimproved road (two dotted lines, at a position plaintiff alleged was a public road) did not show a public road; rather, the existence of such notations on publicly circulated material was relevant as tending to show that the public at least had notice that a “trail road,” unimproved and unmaintained road, existed. Leu v. Littell, 2 Neb. App. 323, 513 N.W.2d 24 (1993).

In the absence of abandonment, vacation, or relinquishment of the roads, a county retains the statutory authority to supervise, control, improve and maintain roads over which a sanitary and improvement district had concurrent authority. Sanitary and Imp. Dist. No.2 of Stanton County v. County of Stanton, 252 Neb. 731, 567 N.W.2d 115 (1997).

County cannot, even under applicable statutes, open a section line road without giving notice to the landowner, giving the landowner a claim for damages, or appointing appraisers and making provisions for payment of the landowner’s damages. Breiner v. Holt County, 7 Neb.App. 132, 581 N.W.2d 89 (1998).

Gates across a trail tend to negate the existence of the trail as a road, but when the evidence shows the gates are opened at will and left open, except in pasture season, such gates to no effectively controvert the public’s right to travel the clearly marked way between what appears to be private property. Breiner v. Holt County, 7 Neb. App. 132, 581 N.W.2d 89 (1998).

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