Berger v. Morton Cnty.

• Decision Date: 01 October 1928
• Docket Number: No. 5511.,5511.
• Parties: BERGER v. MORTON COUNTY et al.
• Court: North Dakota Supreme Court

57 N.D. 305

221 N.W. 270

BERGER

v.MORTON COUNTY et al.

No. 5511.

Supreme Court of North Dakota.

Oct. 1, 1928.

Syllabus by the Court.

Following Burleigh County v. Rhud, 23 N. D. 362, 136 N. W. 1082, it is held that, since the adoption of chapter 112, Session Laws of 1897, the common-law rule with respect to the establishment of a highway by prescription is in force in this state.

Where an owner of land is made aware of a survey preliminary to the improvement of an old trail running across his land, and where, as a result of his desire to have the road relocated, a change is made with his knowledge and acquiescence, followed by substantial improvements upon the roadway as thus changed, such owner will be precluded from asserting that the trail was not continuously used and that it did not follow a definite course.

Appeal from District Court, Morton County; H. L. Berry, Judge.

Action by Peter Berger against Morton County and others. Judgment of dismissal, and plaintiff appeals. Affirmed.T. J. Krause, of Mandan, for appellant.

C. F. Kelsch, State's Atty., of Mandan, for respondents.

BIRDZELL, J.

The plaintiff, Peter Berger, as the owner of the west half of section 24, township 136, range 83, in Morton county, brings this action to restrain the defendants from trespassing and from doing any grading or any work whatsoever in attempting to maintain a public highway through or upon the land. In his complaint he also alleged damages sustained, but upon the trial this claim was abandoned. In their answer the defendants admit their entry upon the premises in question and their intention to continuously and repeatedly enter for the purpose of grading and maintaining a public highway. They allege that such highway runs across the property of the plaintiff, as shown by a survey; that it has been opened and in use continuously since 1904, as a result of which user the public has acquired a highway by prescription. At the conclusionof the trial the court found the following facts: That the plaintiff was the owner of the land in question; that prior to 1904 a trail known as the “Black Hills Trail,” connecting the cities of Mandan and Flasher, ran over, upon, and across the premises described as a public highway; that this trail had since become known as “Morton County Trail No. 61,” and was in an unorganized civil township in county commissioner's district No. A, legally known and designated as a road district in Morton county; that during the year 1904 the surveyor made a survey of highway No. 61, including that portion which crossed the plaintiff's premises; that the highway as so surveyed was openly, notoriously, continuously, peaceably, and adversely used and traveled by the general public from the year 1904 to the year 1917, inclusive; that during the spring and summer of the year 1917, Commissioner Brown, of road district A, at the request and upon the application of the plaintiff, caused that portion of the highway running over the latter's land to be changed and relocated in part, and that by reason of such change and relocation the highway was moved in an easterly direction approximately 44 feet at the top of a hill known as “Oak Coulee Hill,” and that from that point the road as changed and relocated ran in a southwesterly direction, converging with the original trail or road at a point upon the plaintiff's premises; that the highway, as changed and relocated in part, did not materially change the identity of the line of travel and did not change the objective points within and upon the plaintiff's premises; that from and after the change in 1917 as described, the highway as so changed and relocated in part was openly, notoriously, continuously, peaceably, and adversely used and traveled by the general public and by the plaintiff up to the time of the commencement of this action; that the county commissioners of Morton county graded, maintained, and repaired the highway in question and expended approximately the sum of $500 in so doing; that the plaintiff had knowledge of all the material facts, consented to and acquiesced in such change and relocation, and approved and acquiesced in the acts of the county commissioners in improving, grading, maintaining, and repairing the highway at all times. Upon these findings the court concluded that the defendants had acquired a public highway over and upon the plaintiff's premises under the common-law right of prescription; also, that the plaintiff had consented to and acquiesced in the change and relocation of part of said highway and waived his right to complain and become estopped from assailing or denying the existence of a public highway so acquired by the defendants and the general public. From a judgment of dismissal and for costs, the plaintiff has appealed.

[1] It is first urged here that under the law of this state a public highway cannot be established by prescription unless it existed for 20 years prior to the enactment of chapter 112 of the Session Laws of 1897. See section 1918, Compiled Laws of 1913. This argument is based upon the proposition that, since section 1 of chapter 112, Laws of 1897, in defining what are public roads, includes all roads which had been open and in use as such during the 20 years next preceding the time when the act should take effect, it negatives an intention that any highways might be gained by prescription thereafter by 20 years' subsequent user. Or, to state the argument briefly in other language, the plaintiff contends that there is no common law in this state whereby a public highway may be acquired by prescription; that the only prescriptive highways that can exist legally are such as were based on 20 years' user prior to 1897.

In the Territorial (Pol.) Code of 1877 it is declared (section...