Walcott Tp. of Richland Cnty. v. Skauge

• Decision Date: 23 April 1897
• Citation: 6 N.D. 382,71 N.W. 544
• Parties: WALCOTT TP. OF RICHLAND COUNTY v. SKAUGE.
• Court: North Dakota Supreme Court

6 N.D. 382

71 N.W. 544

WALCOTT TP. OF RICHLAND COUNTY

v.SKAUGE.¹

Supreme Court of North Dakota.

April 23, 1897.

Syllabus by the Court.

1. In 1866 congress, by legal enactment, declared that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” 14 Stat. 253. Held, that this was a grant in præsenti, and that, when accepted by the territory of Dakota, it took effect as of the date of the grant.

2. After the passage of said act it was competent for the local authorities to establish highways over the public lands, and as a highway by prescription rests upon the legal fiction of original establishment, conclusively presumed by 20 years' continuous user, it follows that a road used continuously by the public for more than 20 years after the summer of 1874 becomes a legal highway, although the government did not part with the legal title to a sectional subdivision over which said road passes until the year 1878. In such a case the principle which declares that time does not run against the government, and that no rights can be acquired by adverse possession of land the title to which is in the government, does not apply. The grant for highway purposes takes the case out of the operation of that principle.

3. The locus in quo involved in this case is upon an even-numbered section within the limits of the grant of odd-numbered sections to the Northern Pacific Railroad Company made in 1864. Held that, if such prior grant removed the odd sections from the operation of the grant for highway purposes, still such grant would be effective as to the even-numbered sections, and the prescription right would have run as against the railroad company and its grantees, and hence a highway by prescription would be acquired for the entire length of the road.

4. Section 37 of chapter 29 of the Political Code of 1877 of Dakota Territory declared that “all public highways which have been or may hereafter be used as such for twenty years or more shall be deemed public highways.” Section 1 of subchapter 2 of chapter 112 of the Session Laws of Dakota Territory for 1883 declared: “All public roads and highways within this territory which have been opened and in use as such and included in a road district in the town in which the same are respectively situated during twenty years next preceding the time when this act shall take effect [January 1, 1884] are hereby declared to be public roads and highways and conformed and established as such whether the same have been lawfully laid out, established and opened or not.” Held, that the latter section did not, by implication, repeal the former.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by Walcott township of Richland county against Erick Skauge. From a judgment for plaintiff, defendant appeals. Affirmed.

W. E. Purcell, for appellant. McCumber & Bogart, for respondent.

BARTHOLOMEW, J.

This action was brought by the civil township of Walcott, in Richland county, for the purpose of abating a nuisance. The nuisance consisted of an obstruction erected by defendant across an alleged highway. The erection of the obstruction is admitted, and the sole question at issue was as to the existence at the point where the obstruction was raised of a legal highway. The township claimed a highway by virtue of 20 years' continuous user. This user was denied by the defendant. As is usual in such cases, the testimony is exceedingly conflicting. It is very voluminous, and coming as it does from a very large number of witnesses, very few of whom could read or write the English language, and who spoke the same but indifferently, it has been matter of no small labor to obtain an intelligent understanding of the facts. But, after an extended study of the testimony, we reach the conclusion that the findings of fact, as made by the trial court, are in all respects supported by a preponderance of the evidence. From the evidence it appears that the land whereon the road was lying and the obstruction was erected was settled upon by one Marteson about the year 1871. Marteson made homestead filing upon the tract, and subsequently made final proof thereon, and received a patent from the government in 1878. The year following he conveyed by warranty deed to the defendant Skauge, who has ever since resided thereon. The land is described as the S. W. 1/4 of section 22, township 136, range 49, in said Walcott township. This quarter section lies on both sides of the Wild Rice river. The highway is claimed along the east bank of said river. The obstruction was erected on the line between the N. W. 1/4 and the S. W. 1/4 of said quarter section, and at a point a few rods west from the east end of said line. It is undisputed that from some time anterior to 1871 there was a traveled track, following substantially along the east bank of the Wild Rice river, from a point about 40 rods south from the N. W. corner of the N. W. 1/4 of said section 22, running in a southerly direction to the south line of said section. This track extended north and south from the points where it entered this section in such a manner as to form a continuous road from Fargo to Ft. Abercrombie. About the year 1871 a fence was erected by Marteson across the S. W. 1/4 of said S. W. 1/4 of said section, and by reason of said fence the line of travel was changed, and made to run east of the fence, and some distance east-perhaps as much as 25 rods in some places-from the original line of travel. Subsequently this fence was removed, and the travel returned to the old line. It was a vital point in this case to fix the date at which said fence was removed. Nor is it possible, under the evidence, to reach a positive conclusion. The trial court finds that such removal took place in the summer of 1874. We are satisfied that there is much evidence to sustain that finding. All of the witnesses appeared before the trial court. That court had facilities for judging as to the accuracy and truthfulness of their statements which we do not and cannot possess; and since our own minds, on the printed record, would be left in some uncertainty, we felt ourselves in duty bound to accept the findings of the trial court. If, then, it be taken as established that the travel returned to the old route in 1874, it had continued for more than 20 years from that date at the time this action was brought, and at the time the obstruction complained of was erected. There is in the record evidence which shows that, some time subsequently, proceedings were had to establish a highway upon the north and east lines of said quarter section, and turn the travel thereon. And while it appears that this last-mentioned route was used by the public, to some extent, for two or three years, yet it equally appears that a very material portion of the travel continued during those years to follow the track along or near the east bank of the river. The road on the quarter-section line was abandoned after two or three years by reason of the natural obstructions in the construction of a highway thereon. There is also evidence in the record that there were some variations in the line of the travel on the road following the river bank. The trial court, however, finds these variations so slight as to be immaterial, not being sufficient to destroy the identity of the line of travel. It may be stated that, at the particular point where defendant erected the obstruction across the highway, no change of line or travel occurred at any time subsequent to 1871, all the changes being at a point south of the obstruction. Taking it, then, as established that the travel over the point in question had been continuous for more than 20 years, and that the alleged road was of such a nature and character as would, the travel having continued for a sufficient length of time, constitute a public highway, we are then...