Kleppe v. Odin Tp.

• Decision Date: 25 October 1918
• Citation: 40 N.D. 595,169 N.W. 313
• Parties: KLEPPE v. ODIN TP., McHENRY COUNTY, et al.
• Court: North Dakota Supreme Court

40 N.D. 595

169 N.W. 313

KLEPPE

v.ODIN TP., McHENRY COUNTY, et al.

Supreme Court of North Dakota.

Oct. 25, 1918.

Syllabus by the Court.

All that the law requires of a petition for the laying out of a highway, which is filed under the provisions of section 1925 of the Compiled Laws of 1913, is that it shall be sufficiently definite as to description to enable a surveyor to locate the highway and to be reasonably intelligible to a reasonably intelligent man.

The word “deemed,” which occurs in section 1927 of the Compiled Laws of 1913 and in the phrase “and in case the board having jurisdiction shall fail to file such order within twenty days it shall be deemed to have decided against such application” refers to a disputable presumption.

A person has no standing in a court of equity to question the existence and right of maintenance of a public highway on account of a failure to have the order locating the same filed with the county auditor, where such highway has been continuously used for 16 years after the filing of the petition for the road, and during such time public money has been expended thereon and road taxes worked thereon, and during such 16 years the said objector has impliedly recognized its existence, petitioning both the board of county commissioners and the board of township supervisors, and has, until the bringing of the suit, at no time otherwise questioned the validity of its creation.

Appeal from District Court, McHenry County; A. G. Burr, Judge.

Action by Lars Kleppe against Odin Township, McHenry County, and others. Judgment for defendants, and plaintiff appeals. Affirmed.Charles D. Kelso, of Minneapolis, Minn., for appellant. J. H. Ulsrud and John C. Thorpe, both of Towner, for respondents.

This is an action to have a certain highway decreed to have been illegally established and not to exist, and to restrain the defendant from in any way entering upon, working, or repairing the same. The defendant asserts the legality of the establishment, and has also pleaded estoppel and title by prescription. The trial court found for the defendant township, and the plaintiff appeals.

Two quarter sections of land, which are owned by the plaintiff, are affected by the highway. One was pre-empted from the government in 1902, and the other was purchased from the state at a school land sale in 1915. The road is what is called the “Hogback Road,” and for the greater part, if not all, of its course, and, at any rate, where it passes through the plaintiff's land, runs along a natural backbone or ridge, or hogback, which was evidently once the dividing line between the two lakes, is well graveled, and graded by nature, of an average height of from 10 to 15 feet, and of an average breadth of from 20 to 50 feet, extends for a length of about 5 miles, and appears in every way to be a natural highway, whose course is well defined and apparent to all. This highway appears to have been driven on in the early '60's, in 1881, and continually thereafter until the time of trial. There is also evidence that in 1882 the buffalo hunters claimed that it had been used as a cart trail as long as they could remember. The trial court has found, and we believe correctly:

“That on or about July 2, 1900, there was filed with the board of county commissioners of McHenry county, North Dakota, a petition in due and legal form, signed by a legal and sufficient number of citizens, voters, and taxpayers in the vicinity of the road to be opened, praying for the opening of said Hogback road, and described in said petition as follows: ‘Leaving the county road on the half section line in section 29, township 154, range 78, and running south to where it strikes what is called the backbone or ridge running southeast to Soo Railroad; then following the railroad to Main street at Balfour’-and thereafter such due and legal proceedings were had upon said petition, and the same having been legally posted and notice given in the manner provided by law of the hearing thereon, the said board of county commissioners of McHenry county, North Dakota, on April 1, 1901, opened, and laid out said road by an order made in the form following, to wit: ‘The board on motion resolved that the above-described [road] be ordered opened and laid out as follows: That said road be running in accordance with petition as far south as the beginning of the organized township of Balfour. Further, that said road be surveyed at once, the survey to be paid by the several road districts through which the road runs. Motion carried.’

That at the time said proceedings were had before said board of county commissioners the defendants, Odin township and Lake Hester township, were unorganized, and the said board of county commissioners was a board of proper jurisdiction in said matter, and the petition so filed with said board was in sufficient legal form to confer upon said board of county commissioners of McHenry county, North Dakota, jurisdiction therein.

That thereafter the said road was surveyed, and a proper survey of the same made, and a record thereof made and filed in the office of the county auditor in and for McHenry county, North Dakota, and it is now of record therein.

That ever since said proceedings were so had before said board of county commissioners said road has been open to public use, and has been continuously traveled and used by the public, and the said defendants, McHenry county, Odin township, and Lake Hester township, have expended various sums of money in improving the same, and in maintaining the same in a proper condition for public use and travel.

That the road so opened as a result of the petition so filed is peculiarly adapted to travel and of a condition which does not require a great amount of work or expense to maintain the same in condition for public use and travel.

That said Hogback road was an established road in 1882, and has been in continuous use and travel ever since said time, and said road was used and traveled as...