147 N.W. 726 | N.D. | 1914
About June 5, 1894, a number of freeholders of the county of Morton petitioned the county commissioners to establish a highway extending for several miles and incidentally passing on the south line of a certain quarter section designated as the S. E. J of 30-140-86, which tract was at that time owned by one Buoff. This petition was signed, among others, by this plaintiff, who, however, did not at that time own the land. Proceedings were subsequently had whereby the county board appointed three freeholders of the county to act as viewers and report to the board. Those proceedings are set out in the minutes of the board of county commissioners under the date of July 2, 1894. On October 2, 1894, the three viewers reported to the county commissioners that they had slightly deviated from the section line in passing the above-described tract, and had gone thereon around several water holes which obstructed the section line. The county board declared said road open and a public highway. At that time there were no objections made by any person, nor any claim for damages made against the county by reason of the taking of the private land for this public use.
Early in the year 1906, said highway was surveyed by the county surveyor, who made and filed a report thereon, to the county board, which was approved on the 4th day of June, 1906, and no appeal has ever been taken from the action of the said board. All of these steps were taken under §§ 1206 — 1217, Oomp. Laws 1887.
The said road has been in continuous use as a highway since October 2, 1894. In 1906 Buoff, who was owner at that time, fenced said
All of those objections constitute an attempt to attack collaterally a record of the county board, which, upon its face at least, shows all of those jurisdictional steps to have been taken. Such attacks cannot be sustained in this action. The recitals in the minutes of the county board will be taken by this court as conclusive when attacked in a collateral suit. The record of the board of county commissioners contains the following recital under date of July 2, 1894: “The board, being satisfied that the proper notices had been posted for the time required by law, the prayer of the petitioners was granted, and Max Schultze, Edward
All of the recitals as above stated should be and are accepted by this court as binding as far as this collateral attack is concerned, and show the road in question to be a legal highway. See: Todd v. Crail, 167 Ind. 48, 77 N. E. 402; Evansville, I. & C. Straight Line R. Co. v. Evansville, 15 Ind. 421; Ely v. Morgan County, 112 Ind. 361, 14 N. E. 236; Adams v. Harrington, 114 Ind. 66, 14 N. E. 603; Strieb v. Cox, 111 Ind. 299, 12 N. E. 481; Cox County v. Montgomery, 106 Ind. 517, 6 N. E. 915; Terre Haute v. Beach, 96 Ind. 143; Chicago & A. R. Co. v. Sutton, 130 Ind. 405, 30 N. E. 291; Bowen v. Hester, 143 Ind. 511, 41 N. E. 330; Runner v. Scott, 150 Ind. 441, 50 N. E. 479; Knox County v. Aspinwall, 21 How. 539, 16 L. ed. 208; Evansville Ice & Cold Storage Co. v. Winsor, 148 Ind. 682, 48 N. E. 592; State ex rel. Jenkins v. Harland, 74 Wis. 11, 41 N. W. 1060; State v. Minneapolis & St. L. R. Co. 88 Iowa 689, 56 N. W. 401; Cassidy v. Smith, 13 Minn. 129, Gil. 122; Lingo v. Burford, 112 Mo. 149, 20 S. W. 459; State v. Lewis, 22 N. J. L. 564; 37 Cyc. 127; Clift v. Brown, 95 Ind. 53; Henline v. People, 81 Ill. 269; Yankton County v. Klemisch, 11 S. D. 170, 76 N. W. 312.