141 Minn. 240 | Minn. | 1918
In July, 1896, plaintiff, Enoch Carlson, was and still is the owner of a farm situated in the town of Elmo, in Otter Tail county. There was no public highway leading to or from the farm, and plaintiff’s means of access to the market town of the neighborhood was over the land of adjoining owners. On July 7, of the year stated, the town board of supervisors, on a proper petition therefor, duly laid out a cartway over the land of one Iverson from a duly laid out public highway to the land of plaintiff; thus affording plaintiff a way over which he could travel without trespassing upon the land of others, and giving him direct connection with what is designated in the record as the “Parker's Prairie Road.” The cartway thereafter remained open and in use until vacated in the proceeding here under review. Some time in the year 1916, in proceedings duly had for the purpose, the town board laid out another cartway 80 rods to the east and running parallel with the old way for the benefit of one Olson, whose situation was similar to that of Carlson and who desired direct connection with the “Parker’s Prairie Road.” The new way extended along the east boundary of plaintiff’s farm and afforded both him and Olson an outlet to the public road mentioned. Thereafter in October, 1916, on petition and after due hearing, the town board made an order vacating the first cartway, theretofore laid out for the benefit of plaintiff, on the ground, as we understand the matter, there was no occasion for the existence of both, when that laid out at the instance of Olson equally served the interests of all concerned. Plaintiff appealed from that order to the district court where there was a verdict affirming the order of vacation, and assessing plaintiff’s damages at the sum of $50. Plaintiff then moved for judgment notwithstanding the verdict or a new trial and appealed from an order denying the same.
It is contended in support of the appeal: (1) That the. town board of supervisors is without authority under our statutes to vacate a cartway;
1. The first contention stated presents the principal question in the case. Counsel for appellant has prepared an exhaustive brief thereon, reviewing the history of highway legislation in this state from territorial days to the present time, and pointing out what appears to be a fact, that no statute has ever been enacted expressly granting to the town board of supervisors authority to vacate cartways. The general authority to vacate town roads has been granted to that board and it has possessed the same from an early day in the state's history. Section 33, c. 13, G. S. 1866. But the word “cartway” does not appear in any of the statutes so granting that authority. And from this counsel draws the conclusion that the legislature never intended the town board to have authority to discontinue cartways when once established; that none having been granted expressly none can exist by implication. The correctness of that view of the statute may well be doubted. The cartway when laid out by" public authority is a public way, open to the free use of the public, though laid out and opened primarily for the benefit of a particular person. Section 47, c. 13, G. S. 1878; Mueller v. Supervisors of Town of Courtland, 117 Minn. 290, 135 N. W. 996; Boyden v. Aschenbach, 79 N. C. 484 (539); Cook v. Vickers, 141 N. C. 101, 53 S. E. 740. And our statutes granting to town boards the right to vacate town roads might without violence be construed to include the cartway, for that sort of a way belongs and is a member of the class with reference to which the statute expressly grants the authority to discontinue or vacate.
But it is unnecessary to so construe the statutes, for in our opinion the whole question is settled and put to rest by chapter 235, p. 290, Laws 1913. That was a general and comprehensive revision of our highway statutes, and the vacation proceedings here in question are controlled by its provisions. The public highways of the state are there classified as state roads, county roads and town roads, and, by subdivision 3 of section 1, it is declared that the latter, or town roads, shall be construed to include roads and cartways established, constructed and improved by the several town boards of the state. By section 38 all town roads are given into the care and supervision of the town boards, and
2. The second question does not require discussion. The evidence is sufficient to justify the vacation of the Carlson cartway. Both Carlson and Olson require a way' to market without trespassing upon the lands of their neighbors. One cartway will serve both, and there is no
Order affirmed.
