State ex rel. Veale v. Paul

Citations

• 112 Kan. 826
• 213 P. 165
• 1923 Kan. LEXIS 497

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Injunction—Removal of Obstructions in Public Highway — Jury Trial Not a Matter of Right. In. an action to enjoin the continued maintenance of obstructions to an established public highway a jury is not a matter of right.</p> <p>2. Same. There was no issue of fact requiring a jury trial in this case.</p> <p>3. Same — Location of Road Determinable from County Records. The original location of the public road in question was clearly determinable from the county records.</p> <p>i. Same — Report oj Surveyor. The fact that the surveyor called to aid the viewers of the road petitioned for ran his line on the west side of the proposed road, instead of along its center according to the general custom of land surveyors, is of no importance when the location of the road is otherwise clearly determinable from the record.</p> <p>5. Same — Road Legally Opened — Only One-half Actually Traveled — Right to Full Width of Road Not Abandoned. Where a public highway is petitioned for to take the place of another 60-foot highway condemned for a railway right of way, and the new road is viewed, recommended, approved and orderd to be opened as recommended, “of the width of same [60] feet as the old road,” and such new road is in fact opened and traveled, such opening and use created and perfected the public right to a highway of the full width of sixty feet; and the fact that the full width of the road has never been thus used and that adjacent property owners were permitted to maintain hedges, fences, shade trees and other obstructions to the center of the established road and that the public travel has always been on the other side of the road, does not lessen the public right to the use of the full width of the road whenever the expanding needs of the public so require.</p> <p>6. Same — No Part of Road on Railway Right of Way. The record examined, and held not susceptible of a fair interpretation that either the road petitioners, or the view