Burleigh County v. Rhud
| Decision Date | 15 June 1912 |
| Citation | 136 N.W. 1082,23 N.D. 362 |
| Parties | BURLEIGH COUNTY v. RHUD |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Burleigh county; Hon. W. H Winchester, J.
Defendant was permanently enjoined from obstructing a certain alleged public highway, and appeals.
Reversed and injunction dissolved.
Judgment of the District Court reversed, and the injunctional order vacated.
Newton & Dullam, of Bismarck, attorneys for defendant and appellant.
Smith & McCurdy, Stevens & Berndt, all of Bismarck, attorneys for plaintiff and respondent.
This action was commenced by Burleigh county on July 20, 1910, and seeks to perpetually restrain the defendant, H. C. Rhud, from obstructing a certain trail alleged by the plaintiff to be a public highway. Although the complaint alleges that the highway in question is a public highway, the claim of the plaintiff (Burleigh county) is based upon prescription merely. A permanent injunction was granted by the trial judge, and an appeal has been taken to this court. The lower court found as findings of fact, "that for more than twenty-two years prior to the year 1909, and up to the commencement of this action, a highway extending across the east half of section 27, township 139 north, range 80 west, of the fifth principal meridian, Burleigh county, beginning at a point on the center of Soo Railway, 1.15 chains west of the corner of sections 22, 23, 26, and 27 of said township and range, thence running in a southwesterly direction across said portion of section 27 to a point 1.65 chains east of the southwest corner of said east half of section 27 on the east and west line between section 27 and 34 of said township and range, and thence continuing into the city of Bismarck, as alleged in plaintiff's complaint, has been used and traveled by the general public openly, notoriously, continuously, peaceably, and adversely." This finding seems to us to be borne out by the evidence. It is shown that until the defendant acquired such land on April 28, 1909, the same had at all times been an open, wild, and uncultivated prairie. It is also shown that after the purchase of the land by Rhud, the plaintiff county graded and built a road on the north line of said section 27, west from the bridge hereinafter noticed, and, at a point west of where the trial turns south, made a slight curve to the south in such road, and went around a hill, and at the top of that hill turned to the north line of said section 27. This work was begun by the plaintiff and finished by the county commissioners. There is no proof, however, in the record, though the fact is claimed, that the county commissioners at any time consented to discontinue the trail or highway in controversy. On the other hand, there is no proof that the county at any time did any work or expended any money upon the particular trail, but merely upon a bridge on the road upon the north line of the section before referred to, and upon said north section line from which the trail in question diverges. Defendant claims that the trail at no time was so definite and certain as to furnish the subject of a highway by prescription. We, however, think otherwise. For the last twenty-two years, at any rate, the road seems to have been continuously traveled, openly, notoriously, peaceably, and adversely, along practically the identical route mentioned in the complaint, the only variations being at certain places in the hillside, where new and parallel tracks would be followed for a short distance, and which were such variations, indeed, as are usually to be found in prairie roads. Such variations we do not hold to have been material, nor to have destroyed the identity of the line of travel. Walcott Twp. v. Skauge, 6 N.D. 382, 386, 71 N.W. 544. The mere fact, indeed, that a road is widened from time to time, owing to the conditions of the weather and exigencies of travel, is immaterial where the same objective points are practically preserved. It is, in fact, an evidence of user, rather than nonuser. Nor do we believe that there is anything in the contention of appellant that the adverse use was not known to the owner of the land during all of its continuance. Rather, it seems to have been established by this court that it is immaterial whether such adverse use was known or unknown. See Walcott Twp. v. Skauge, 6 N.D. 382, 387, 71 N.W. 544.
Nor do we understand the law to be as contended for by counsel for appellant, that under a statute such as ours it is necessary to show that the public authorities have worked or expended money upon the particular road in question. Such lack of improvement and expenditure may be used as evidence to show that no highway exists, but it is by no means conclusive as to its nonexistence. See 27 Cyc. pp. 29 et seq., and cases cited. Such a failure of improvement is stronger evidence against the prescriptive right in localities where work is usually put upon roads, and is usually necessary for their maintenance, than in localities such as the one under consideration. Often, the raw and unimproved prairie road is the best of all roads.
Although we hold that the highway in question has been in the open notorious, and peaceable use of the public for more than twenty years prior to the bringing of this suit, and the attempt to fence it on the part of the defendant, we agree thoroughly with counsel for appellant that such adverse user does not date back to a period prior to the year 1876, nor did the trial court so find. If, therefore, his contention is correct that a user for twenty or twenty-two years prior to the fencing will not be sufficient to vest the use of the highway in the public, and that such user must be dated back twenty years from January 1, 1896, when § 1050, Rev. Codes, 1895, went into operation, plaintiff fails, and the judgment of the district court must be reversed. Appellant's contention, in short, is that we have no statute in North Dakota providing for the acquiring of public highways by prescription except chapter 112, p. 212, Laws of 1897, and that that act was prospective merely. The title of this act reads: Section 1 therefor provides: The "public roads and highways within this state, which have been open and in use as such and included in a road district in the town in which the same are respectively situated during twenty...
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