King v. Stark Cnty.

• Decision Date: 25 April 1936
• Docket Number: No. 6396.,6396.
• Parties: KING v. STARK COUNTY et al.
• Court: North Dakota Supreme Court

66 N.D. 467

266 N.W. 654

KING

v.STARK COUNTY et al.

No. 6396.

Supreme Court of North Dakota.

March 20, 1936.

Rehearing Denied April 25, 1936.

Syllabus by the Court.

1. The section lines are highways of this state to the width of two rods on each side of the section line.

2. The highways belong to the state, and the state, acting in its sovereign capacity, may grade and improve the highways on said lines as in its judgment may be necessary for the convenience and safety of the public.

3. An abutting owner has the right of ingress or egress to such highway subject to the paramount right of the state to improve and control the highway in the interest of the public; but such owner cannot insist on this right of ingress and egress at any place he sees fit as he holds this right subject to the superior right of the state.

4. An application for a temporary injunction should be denied where the complaint does not show a cause of action and defects in the complaint cannot be supplied by affidavit.

Appeal from District Court, Stark County; Harvey J. Miller, Judge.

Action by Elmer King against the County of Stark and others. From an adverse order, defendants appeal.

Reversed.

P. O. Sathre, Atty. Gen., W. J. Austin, Asst. Atty. Gen., and Theodore Kellogg, State's Atty., of Dickinson, for appellants.

William Langer, of Bismarck, and T. F. Murtha, of Dickinson, for respondent.

BURR, Judge.

Plaintiff alleges that the highway department of this state let a contract for the grading of a public highway running through his farm; that the contemplated improvement includes a seven-foot grade which comes within a few feet of his buildings, and, because of the location and the topography of the country, his house will be cut off from the remaining buildings and the grade will destroy his feeding plot; that access to the barns from the house will be cut off and he will be required to travel about half a mile from his house to his barns; that this contract was let without granting him a right to be heard and without making any plans to compensate him for any damages which he may suffer.

The complaint fails to allege that the highway sought to be improved is not on a section line; that the grading is unnecessary or the acts arbitrary; that the access from the house to the road and from the barns to the road has been prevented; nor does plaintiff claim the defendants refuse to permit him to build a connection or deny him access at another point.

Coincidental with the service of the complaint, there was also served an order to show cause why the defendants should not be enjoined from making the proposed improvement; the order being based upon the verified complaint and the affidavit of counsel for the plaintiff setting forth facts stated in the complaint.

A restraining order was issued and came on for hearing on November 4, 1935. At that time the defendants demurred to the complaint on the ground that the complaint did not “state facts sufficient to constitute a cause of action” and that “the court has no jurisdiction of the Defendants or the subject of the action.”

The defendants filed affidavits which showed that the highway sought to be improved is on a section line; that the road is open to the width of two rods on each side of the section line, and no more; and that this is the status of the road as it passed the buildings of the plaintiff. There is no dispute as to these facts. Neither is there any claim that the proposed improvement is unnecessary, or arbitrary, or made maliciously.

It is conceded the state highway department has the right to make the improvement planned; that the highway is on the section line, which runs between the premises owned by the plaintiff and the premises of one Annie King; that the house is on the latter premises and the barns, etc., on the plaintiff's premises. The defendants are not using any portion of the land for the building of the grade except the strip two rods wide on each side of the section line.

At the hearing it was stipulated expressly “that the record title owner of the premises east of the proposed roadway” is the wife of the plaintiff; that she resides therein and it is not occupied as a homestead; “that the Northern Pacific Railway tracks run east and west and are about 600 feet south of the buildings, and that the grade is being made by reason of the fact that the highway department is constructing an overpass over the said Northern Pacific Railway tracks;” and, further, that where the road abuts the property on the north “that the road will be raised four feet, and it continues upgrade until it reaches the south end of King's property, or abreast of it, where the elevation is being raised seven per cent., and at a point in front of King's buildings the grade is seven and eight tenths feet.”

The trial court found that some of the buildings of the plaintiff are actually on the right of way, and others appear to be about six inches to two or three feet from the edge of the road, and that if the grade is raised up to said height already mentioned opposite these points and near these barns and buildings, then “there is reasonable grounds to believe that such building of said road will be a barrier to the plaintiff in going from one side of the road to the other, that is, that it will form a barrier between the dwelling house on the east side or road and barns on the other; that there is reasonable grounds to believe that there will be a shutting off of the access to the dwelling house by the raising of said grade; that there is reasonable grounds to believe that there will be a shutting off of the access to said barns * * *.” The court enjoined the defendants from building the grade or building the road “as it passes along the east side of lots 13 to 24 inclusive in Block 17 of O'Connor's Addition to the City of Belfield, * * * until such time the damage is ascertained and damages paid to plaintiff or into court in the manner provided for by law in such cases,” and defendants appeal.

The sole purpose of this action is to enjoin the state from making this improvement. On the return to the order to show cause the defendants specifically point out in the affidavit of the state's attorney that the complaint fails “to state any grounds upon which a restraining order may possibly be issued, and failed to state facts sufficient to constitute any cause of action in injunction or for a restraint, temporary or otherwise.” The same affidavit shows that the plaintiff had no title to a portion of the land; that the grade was “to be constructed only to the width of two (2) rods on each side of such section line at the point where it adjoins the property of the Plaintiff”; that this strip two rods on each side of the section line had been reserved, dedicated, and granted to the state of North Dakota by the United States; and that “said property has been opened, by the Board of County Commissioners of Stark County, North Dakota, as a highway by appropriate action of said Board.”

This matter was brought to the attention of the trial court at the time of the hearing and was before the court for determination even though the demurrer did not come on for hearing. There is no denial of the facts set forth in the state's attorney's affidavit-in fact, they seem to be conceded. Neither does the record show any relationship between “the addition to the City of Belfield,” mentioned in the order, and this highway.

[1] An application for a temporary injunction should be denied where the complaint does not show a cause of action. The complaint must show a right to a judgment of injunction, and defects therein cannot be supplied by affidavit. McClure v. Hunnewell, 13 N.D. 84, 99 N.W. 48. This relief can be obtained only in the manner prescribed by section 7529 of the Compiled Laws, and this presupposes a valid complaint which states facts entitling him to the order granted or sought. Forman v. Healey et al., 11 N.D. 563, 93 N.W. 866. The complaint must contain the averments which, if proven, would entitle the plaintiff to the relief demanded. This rule holds good in the case at bar even though in the case cited the facts differ. That the complaint must contain facts which show the plaintiff entitled to the relief is set forth in Burton et al. v. Walker et al., 13 N.D. 149, 100 N.W. 257.

[2][3] The highways belong to the state. The state has an easement on the section lines to the width of two rods on each side for highway purposes. From the very beginning of territorial days down to and including the present time section lines have been declared to be public highways. As shown in Hillsboro National Bank, etc. v. Ackerman et al., 48 N.D. 1179, 189 N.W. 657: “All section lines, under the grant of Congress of 1866 (section 2477, Rev.Stats.U.S. [U.S.Comp.St. § 4919 (43 U.S.C.A. § 932)]), having been accepted by chapter 33, Laws Dak.Ter.1871, became public highways from the time of the congressional grant.” The grading and maintaining of highways on section lines is a governmental function. The plaintiff does not dispute this, nor does he object because the state is using soil from the four-rod strip to build the grade leading to the overpass.

“The public is entitled to the full and free use of all the territory embraced within a highway in its full length and breadth.” City of Radford v. Calhoun (Va.) 181 S.E. 345, 347, 100 A.L.R. 1378.

In support of his contention he cites section 14 of the Constitution of this state, which provides that: “Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner.”

[4][5] Under the showing made the only property plaintiff can claim to be affected is the right of access to his own property. The grading does not divide the farm. The section line, which is a regular highway, does this, and plaintiff does not own the portion east of the road. While an abutting owner has the right...