Huffman v. Bd. of Sup'rs of W. Bay Tp.

• Decision Date: 22 January 1921
• Parties: HUFFMAN v. BOARD OF SUP'RS OF WEST BAY TP., BENSON COUNTY.
• Court: North Dakota Supreme Court

47 N.D. 217

182 N.W. 459

HUFFMAN

v.BOARD OF SUP'RS OF WEST BAY TP., BENSON COUNTY.

Supreme Court of North Dakota.

Jan. 22, 1921.

Syllabus by the Court.

Under U. S. Rev. St. § 2477 (U. S. Comp. St. § 4919), granting the right of way for highways over public lands not reserved for public use, and the act of the Legislative Assembly of Dakota Territory (chapter 33, Laws 1871), declaring all section lines in the territory of Dakota to be public highways as far as practicable, public highways were located and established upon all section lines within the territory where it was practicable to construct highways.

The highways so established on section lines have not been vacated, nor have the rights of the public in such highways been surrendered, by any subsequent legislation.

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

Action by Renaldo Huffman against the Board of Supervisors of the Township of West Bay, Benson County. From a judgment holding that a highway had been established, plaintiff appeals. Affirmed.Wardrope & Butterwick, of Minnewaukan, for appellant.

Sinness & Duffy, of Minnewaukan, for respondent.

PER CURIAM.

On December 28, 1917, the board of supervisors of West Bay township in Benson county made an order laying out, establishing, and opening a highway-

“beginning at the common corner of sections 9, 10, 15, and 16 in township one hundred fifty-three, north of range sixty-seven west of the Fifth principal meridian, and running due east along the section line between the said sections 10 and 15 to the place where said section line intersects the meander line bounding Devils Lake, such highway to be opened for a distance of thirty-three feet on either side of said section line from the said common corner of the four sections hereinbefore mentioned to the intersection of the section line aforesaid with the west boundary of the village of Minnewaukan, Benson county, North Dakota, and for a distance of thirty-three feet on the north side of said section line from the point of such intersection with the west boundary of Minnewaukan to the place of intersection of the said section line with the meander line aforesaid.”

The appellant, Huffman, who is the owner of the southwest quarter of section 10 and the west half and certain outlots in section 15, appealed from such order to the district court of said county as provided by law. In his notice of appeal he asserted that the proceeding before the board of supervisors were invalid for certain alleged defects in the petition, and want of jurisdiction in the board to lay out that part of the highway which adjoined, and formed the boundary line of, the village of Minnewaukan.

Appellant did not, however, content himself by merely assailing the jurisdiction of the board of supervisors. In the notice of appeal he asked that-

In event the objections to the jurisdiction were overruled, “a trial of said cause be had anew in the district court: (1) On the necessity of establishing such highway; (2) on the question of the abandonment of said highway; (3) on the question of damages sustained by appellant; and, as further grounds for appeal asks that upon such trial he be allowed damages in the sum of $1,000.”

The trial court entered judgment:

“That the strip of land extending for two rods on either side of the section line between sections ten and fifteen of township one hundred fifty-three north of range sixty-seven west of the Fifth principal meridian, in so far as the same is without the incorporated limits of the village of Minnewaukan is now and since the year 1871 has been a public highway”

-and directed that the proceeding be dismissed. This appeal is from such judgment.

On this appeal it is urged that the trial court erred in refusing to reverse the order of the board of supervisors. It is first contended that such order was invalid for the jurisdictional reasons above referred to. While these objections are referred to in the notice of appeal, the record before us does not show that they were in fact presented to the district court except in so far as the reference thereto in the notice of appeal presented them. And while the trial judge refers to these objections in his memorandum decision, he refrains from ruling thereon. Of course if the jurisdictional objections had been well taken there would have been no occasion to take evidence on the merits of the controversy. But a transcript of the proceedings had in the district court has been certified to this court, and it appears therefrom that the parties proceeded to trial and adduced evidence relating to the three questions on which a trial on the merits was requested without the appellant, Huffman, in any manner, either raising or reserving the jurisdictional objections. In these circumstances, it is somewhat doubtful if these objections can be urged now. It seems rather that these objections were waived (37 Cyc. 130), and that the parties elected to try the controversy on its merits. However, we find it unnecessary to determine whether these objections may be now urged; and, if so, whether there is any merit in them.

The evidence in this case shows that the greater portion of the section line in controversy was in actual use and traveled by the public generally as a highway for some 9 or 10 years. About 8 or 9 years ago, right of way for a highway was procured on the quarter line lying half a mile south of the section line involved here. The highway on the quarter line was a continuation of one of the streets in...