Hatch Brothers Company v. Black
In Hatch Brothers Company v. Black, 25 Wyo. 109, 165 P. 518 (1917), affirmed on rehearing, 25 Wyo. 416, 171 P. 267 (1918), the plaintiff sought to enjoin the defendant from blocking access on a road running across the defendant's land.
The road in question had been established around 1875 or 1876 and used continuously since that time by the public.
The plaintiff used the road to transport his sheep. In 1912, the defendant made a homestead entry onto the lands over which the road ran. The defendant began fencing off the road to prevent damage to his crops from the plaintiff's sheep.
Initially, the Court concluded that a public road could be established pursuant to R.S. 2477 through public use:
"The grant contained in R.S. 2477 is unconditional and contains no provision as to the manner of its acceptance. We think it is quite well settled that when land is granted for a right of way for a public highway, the grant may be accepted by the public without action by the public authorities. The continued use of the road by the public for such a length of time and under such circumstances as to clearly indicate an intention on the part of the public to accept the grant has generally been held sufficient." (Hatch, 165 P. at 519.)
The opinion then briefly reviewed Wyoming's statutory history relating to public roads noted above. Id., at 519-20.
The Court concluded that there was "nothing in these several statutes, as we understand them, prohibiting the public from accepting the grant of the right of way; but on the contrary, they appear to recognize that right." Id.
After distinguishing between acceptance of a grant by the public and establishment of a road by prescription, the Court remanded the case for a determination by a jury whether the grant had been accepted by the public prior to the defendant's homestead entry. Id. at 520.