Rode v. State Highway Comm'n

• Decision Date: 05 June 1929
• Docket Number: No. 5659.,5659.
• Citation: 58 N.D. 249,225 N.W. 801
• Parties: RODE et al. v. STATE HIGHWAY COMMISSION et al.
• Court: North Dakota Supreme Court

58 N.D. 249

225 N.W. 801

RODE et al.

v.STATE HIGHWAY COMMISSION et al.

No. 5659.

Supreme Court of North Dakota.

June 5, 1929.

Syllabus by the Court.

Under the provisions of chapter 159 of the Session Laws of 1927 the department of state highways has the right to designate, locate, redesignate, relocate, alter, and change any portion of the state highway system without first obtaining the consent of the board of county commissioners of any county through which any portion of such highway may be laid out.

Where the department of state highways has designated and located a highway belonging to the state highway system, to run through any county in this state, and thereafter determines to make changes and alterations in the route of said highway, an injunction will not lie to prevent the department from redesignating or relocating or changing any portion of said highway.

The consent of the board of county commissioners of a county through which any portion of such highway may run is not necessary in order to authorize or enable the department of state highways to locate and designate any highway or portion thereof belonging to the state highway system, or to plan and designate the route of said highway, or the portion thereof which runs through said county.

Where the department of state highways has located a highway and designated and laid out the route through any county and the board of county commissioners of any such county thereafter makes application to the board for the designation and location of such highway and consents to the location and routing as made by the department of state highways and by resolution requests the department to construct such highway and agrees to pay the portion or the share of the cost of construction which under the law is payable by the county, an injunction will not lie to prevent the fulfillment of such contract and agreement on the part of the board of county commissioners.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by Paul Rode and others against the State Highway Commission and others. From an order therein conditionally refusing an injunction, plaintiffs and defendant named appeal. Modified, and, as modified, affirmed.L. J. Palda, Jr., Robt. W. Palda, and C. E. Brace, all of Minot, and H. E. Mielke, of Ryder, for plaintiffs.

James Morris, Atty. Gen., and Harold D. Shaft, Asst. Atty. Gen., and Halvor L. Halvorson, of Minot, for State Highway Commission.

Dickinson & Johnson, of Minot, for Ward County.

BURR, J.

The plaintiffs seek to enjoin the state highway commission and the board of county commissioners of Ward county from proceeding with the construction of a certain highway. The trial court decided that under the facts in this case, if the state highway commission intends to construct the highway and charge Ward county with a part of the cost of construction and board of county commissioners of Ward county intends to provide county funds for the building and improvement of the highway in question, so that any part of the improvement would be charged to Ward county, the defendants should be enjoined; but, if the state highway commission intends to construct the highway without expense to Ward county, then no injunction should issue, and an order in conformity with this decision was made.

The plaintiffs appeal from that part of the order of the trial court refusing to enjoin the state highway commission if no expense should be charged to Ward county; and the defendant state highway commission appeals from the order allowing injunction in case a portion of the expense was to be charged to Ward county.

The case involves the construction of chapter 159 of the Session Laws of 1927 relative to the powers and duties of the department of state highways and the county commissioners of the counties of the state in the matter of state highways.

The facts are practically undisputed. As early as 1927 the state highway commission, in planning a state highway system under the laws then in existence, blazed state highway No. 23 known as the Parks Highway, beginning at the Red river opposite Halstad in Minnesota and running in a westerly and slightly northwesterly direction across the state and through the southern portions of Ward and Mountrail counties. In November, 1927, the board of county commissioners of Ward county, under the provisions of section 22 of this law, made written application to the department for the “improvement and construction under the conditions of such act,” of that portion of the highway which would run through the southern part of Ward county and described, as the portion to be improved, the strip beginning at a point where highway 23 intersects highway 6 and running due west to the village of Ryder and westward to the Mountrail county line in said Ward county, or as the complaint states: “Being more particularly described as commencing at the point where sections 3 and 4, 9 and 10, of Township 151, Range 83, in said Ward County, meet, thence due west on the section line to the point where sections 3 and 4, 9 and 10 of Township 151, Range 87, in said Ward County, meet, thence due north on the section line, two miles to the point where sections 27 and 28, 33 and 34 in Township 152, Range 87 in said Ward County, meet, thence due west on the section line, two miles to the Mountrail County line. * * *”

It appears that in the year previous the board of county commissioners had made a similar request to the state highway commission as then constituted and to the United States Bureau of Public Works, and both these departments had approved this route as designated. The board of county commissioners spent some money in surveying the highway, securing the right of way, etc., and practically had complied with the requirements then in force. In April, 1928, the department of state highways made certain changes in state highway 23 so it would pass through the southern part of Ward county and, instead of having the route begin at the point on highway 6 originally intended, relocated and redesignated it as beginning at a point about 8 miles north therefrom, then due west through the county of Ward to that point west of Plaza in Mountrail county which would be due north from the town of Parshall, in Mountrail county. At the time the department decided to redesignate and relocate this portion of highway 23, the county commissioners of Ward county had not requested the change nor consented to it. Neither had the department in its departmental budget or construction program for the year 1928 made provision for the construction of this portion of highway 23 as redesignated, but had made provision and included in the proposed construction work that portion previously designated. In April, 1928, the board of county commissioners of Ward county adopted a resolution, Exhibit B, requesting the department of state highways to “proceed with the preparation of surveys, plans, specifications and estimates required for the following described state highway improvement: The local name of road 23 * * * beginning at NE corner of Sec. 4-152-83, due west 18 miles, ending at NW corner of Sec. 3-152-86.”

The resolution requested the department to take all necessary steps in co-operation with the United States in order to obtain federal aid, requested the state highway commission to appropriate a sufficient amount of state aid to pay for 25 per cent. of the road, and agreed that Ward county would pay 25 per cent. of the total cost of construction. This resolution was recommended for approval by A. D. McKinnon, project engineer, and was approved by the state highway commission on June 21, 1928. Earlier in April of the same year the board of county commissioners of Ward county had adopted a resolution to the effect that the board had been informed the state highway commission had designated as part of highway 23 that strip beginning in township 151, range 83, and running due west or westerly through Ryder, and to the western boundary of Ward county, and that the department of state highways had now designated “as state highway No. 23 to begin at the northeast corner of Section 4, Township 152, Range 83 running due west to the southwest corner of Section 31, Township 153, Range 87,” and that the board approved of this new designation, “provided however, that the State Highway Commission...