Dunstan v. The City of Jamestown
| Decision Date | 20 October 1897 |
| Citation | 72 N.W. 899,7 N.D. 1 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stutsman County; Fisk, J.
Action by William Dunstan against the City of Jamestown, Charles L Mitchell and John Mahoney to obtain an injunction restraining defendants from entering upon the lands of plaintiff for the purpose of constructing, working and maintaining a highway upon the course surveyed and marked out by them, and from removing plaintiff's fences upon the line of such survey and from passing over and across and using the same as a public highway. Judgment for plaintiff and defendants appeal.
Affirmed.
Ormsby McHarg, for appellants.
S. E Ellsworth, for respondent.
This action was brought to obtain a permanent injunction restraining the defendants from entering upon the lands of plaintiff for the purpose of working, constructing, or maintaining a highway between certain points. The case involved the question whether or not a highway had been legally established between said points. In June, 1896, the defendants Mitchell and Mahoney--an alderman and chief of police of the defendant city--entered upon plaintiff's land, removed his fences, and marked out a highway between said disputed points. The trial resulted in granting the relief prayed, and defendants appeal. A diagram will simplify the facts.
[SEE DIAGRAM IN ORIGINAL]
The heavy lines represent the alleged highway. Respondent owns the N. 1/2 of the S.W. 1/4 of section 31. The dispute is as to the existence of a highway between the points "a" and "a." Respondent's land is within the corporate limits of the City of Jamestown, but is unplatted. The evidence showed that in 1880 a petition was presented to the board of county commissioners of Stutsman County asking the establishment of a highway described in the petition as follows: "To start from the eastern terminus of Pacific avenue, in Jamestown, Stutsman County, D. T., and from said terminus to run east one-half mile on section line between sections 25 and 36, township 140, range 64; run on section line between section 31, township 140, range 63, and section 36, township 140, range 64, to the James River thence down the east bank of said river to the dividing line between S. 1/2 and N. 1/2 of S.W. 1/4 of Sec. 31--140--63; thence east on said line," etc. The sufficiency of this petition is not questioned, and it is conceded that the eastern terminus of Pacific avenue is at the quarter post on the north line of said section 36. On March 10, 1880, this petition was duly received by the board and viewers appointed as the statute required. On March 29, 1880, these viewers made their report, recommending the establishment of the highway, and describing the same, for all practical purposes, the same as described in the petition. On April 5, 1880, the report of the viewers was received and read, and a public highway ordered, and the clerk authorized to make a record thereof. The records of the board show that on June 9, 1880, the county surveyor was ordered to make a plat of the road, with plans and specifications for a bridge across the James river at a point further down than is shown on the diagram. The surveyor's notes show that on June 11 he made a survey and plat of the road, and made his report on June 21, 1880.
Two objections were urged as fatal to the establishment of any legal highway between the disputed points. The first goes upon the theory that the establishment and location of the highway might be shown by the surveyor's plat and notes and it is claimed that, while the plat showed a connected highway, yet it did not comply with the notes, as the notes showed an impossible highway. It is true that the law then in force § 689, Comp. Laws) made the surveyor's plat and notes presumptively correct. But this survey could not be ordered until after the road had been established. In this case both parties introduced in evidence the original proceedings for the establishment of the highway. The plat and notes are only presumptively correct. If they do not describe the highway as originally established, the presumption that they...
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