Faxon v. Lallie Civil Tp.

• Decision Date: 08 May 1917
• Citation: 163 N.W. 531,36 N.D. 634
• Parties: FAXON v. LALLIE CIVIL TP.
• Court: North Dakota Supreme Court

36 N.D. 634

163 N.W. 531

FAXON

v.LALLIE CIVIL TP.

Supreme Court of North Dakota.

May 8, 1917.

Syllabus by the Court.

The public lands situated in the territory of Dakota and state of North Dakota at no time belonged to the Indians, and the courts have never recognized any title in the Indians thereto.

A board of supervisors may open a highway along the section lines of the former Indian reservations of North Dakota, and which have now been thrown open to settlement, without compensating the owners of the land for the 66-foot strip of right of way occupied and taken.

The acceptance by chapter 33 of the Laws of 1870-71 of the right of way for the construction of highways on public lands granted by the act of Congress of 1866 (Act July 26, 1866, c. 262, § 8, 14 Stat. 253 [U. S. Comp. St. 1916, § 4919]) related back to and became effective from the date of the grant, and has not been revoked by the subsequent use of a portion of such lands as an Indian reservation, nor by sections 3 and 22 of chapter 112 of the Session Laws of 1897 and section 3 of chapter 97 of the Session Laws of 1899.

Appeal from District Court, Benson County; C. W. Buttz, Judge.

Action by John D. Faxon against the Civil Township of Lallie, Benson County, North Dakota. Judgment for defendant, and plaintiff appeals. Affirmed.

S. E. Ellsworth, of Jamestown, for appellant. T. H. Burke, of Hardin, Mont., and E. T. Burke, of Bismarck, for respondent.

BRUCE, C. J.

This is an appeal from a judgment affirming an order of the board of supervisors of the civil township of Lallie in Benson county, N. D., in a proceeding for the establishment of a public highway under the provisions of article 1 of chapter 31, Political Code, being sections 1918-1939, Compiled Laws of 1913. The appeal from the order of the board of supervisors is taken under the provisions of section 1938, Compiled Laws of 1913.

It appears that the township board of supervisors, in June, 1915, declared four miles of section line open as a highway. Five-eighths of a mile of this runs through the farm of the plaintiff and appellant, whose land lies upon each side of the section line. The only question at issue in this case is whether the plaintiff should be paid for the 33-foot strip which lies on each side of the section line. The township claims an easement or right to use the road under the Public Highway Act of Congress of July 26, 1866, c. 262, § 8, 14 Stat. 253 (U. S. Comp. St. 1916, § 4919), which provides that:

“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

It claims that this act granted section lines, and that this act or grant was accepted by the territory of Dakota by the Act of January 12, 1871, being chapter 33 of the Session Laws of 1870-71, which provided that:

“Hereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable.”

There can be no question that the lands in question, at the time of the passage of these acts, were part of the public domain. Appellant, however, contends that they were reserved for public uses, and therefore that the right of way was not granted or accepted over them. He maintains that they were part of the Devils Lake Indian Reservation at the time of the passage of the acts in question, and that land reserved for such reservations was land which was reserved for a public use. If no right of way then was granted to the state, he contends that the road can only be opened upon paying to the owner of the land his proper damages which would include the value of the strip taken.

[1][2] In this we believe he is in error. The Devils Lake Reservation was not set apart until June 22, 1874, when a treaty was made with the Indian tribes in relation thereto. The grant was made by Congress in 1866, and accepted by the territory in 1871, for we have held that the territorial act of 1871, before referred to, constituted an acceptance of the congressional grant. See Wenberg v. Gibbs Township, 31 N. D. 49, 153 N. W. 440;Township v. Skauge, 6 N. D. 386, 71 N. W. 544;Wells v. Pennington County, 2 S. D. 1, 48 N. W. 305, 39 Am. St. Rep. 758. This and other courts have also held that the federal Act of July 26, 1866, from its clear wording conveys a present grant; when, therefore, the provision was acted upon and accepted by the territory, such acceptance related back and became effective from the date of the grant. Township v. Skauge, 6 N. D. 388, 71 N. W. 544;Wells v. Pennington Township, 2 S. D. 6, 48 N. W. 305, 39 Am. St. Rep. 758; Railway Co. v. U. S., 92 U. S. 733, 23 L. Ed. 634; Railway Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578;Wright v. Roseberry, 121 U. S. 506, 7 Sup. Ct. 985, 30 L. Ed. 1042;French v. Fyan, 93 U. S. 169, 23 L. Ed. 812;Northern Pacific Railway Co. v. Barlow, 26 N. D. 159, 143 N. W. 903;Id., 240 U. S. 484, 36 Sup. Ct. 456, 60 L. Ed. 760. If, therefore, at the time of the grant the land belonged to the United States, the highway was created in 1871, and the plaintiff has no right therein, unless, perhaps, the subsequent setting apart of the territory as an Indian reservation in 1874 reserved the land for a public use, and repealed the prior grant. We are satisfied that the reservation in question was never at any time property which belonged to the Indians. Whether rightfully or wrongfully, the courts have never recognized any title in the Indians to the lands of the United States, except as we have chosen to specifically grant it.

The history of the territory is as follows: In 1609, Henry Hudson discovered the bay which was named after him. In 1669, the Hudson Bay Company was chartered by Charles the Second, and to it was given the basin of Hudson Bay including the valleys of the Red River of the North, the Cheyenne and Devils Lake. The French owned the Valley of the Missouri, thus splitting it into two parts, separated by the line now represented by the main line of what is known as the Soo Railroad. After the Revolutionary War, the northwestern half of the state was ceded by the treaty of Paris by England to the United States. Sixteen years later, the other half of the state was purchased from France as a part of the so-called Louisiana Purchase. Settlement was made by the whites at Pembina as early as May 17, 1801, and the country from that time was continuously occupied by white settlers. It is true that, during this time, various Indian tribes claimed all of the state as well as Minnesota and Iowa, but the Indians were always treated as subjectsof the country; the land as public domain and the Indians merely as licensees. It was when they were thus occupying the land in this general way that the act of 1866 was passed by Congress, which granted the public highways to the several states, and which was accepted in 1871 by the territory of Dakota. The Indians were then gradually moved westward, and in 1874 a treaty was made with the Sisseton and Wahpeton Band of Sioux Indians, whereby they were paid the sum of $80,000 for a relinquishment of all of their claims in the basin of the Red river and Devils Lake, and were granted the right to the use of the reservation, commonly known as the Devils Lake Indian Reservation.

It is clear that, when the reservation was accepted by the Indians, the Highway Act had been in effect over eight years and had been accepted for three years. It is also clear that the right granted to the state was not in the nature of a license, revocable at the pleasure of the grantor, but that highways once established over the public domain under and by virtue of the act became vested in the public, who had an absolute right to the use thereof which could not be revoked by the general government, and that whoever thereafter took the title from the general government took it burdened with the highways so established. Township v. Skauge, 6 N. D. 388, 71 N. W. 544.

Even, indeed, if we concede that the setting apart of a tract of land for an Indian reservation is a public use, and on this we express no opinion, there is nothing in the statutes or in the decisions which lead us to believe that it was ever intended to divest the public of the highway rights before granted, or, at any rate, that when the reservations were again opened to the public, as the Devils Lake Reservation was in June 2, 1904, the old rights could not be asserted.

The situation was this: At the time the act of July 26, 1866, was approved, the land in controversy was Indian country, i. e., the claims of the Indian tribes had not at that time been extinguished, but the fee was in the United States; the Indians...