| N.D. | Oct 25, 1918
Lead Opinion
(after stating the facts as above). We are satisfied that in this case there is no ground for the interposition of a court of equity and that the learned trial judge properly denied the injunction which was prayed for. The facts in this case are in many respects similar to those under consideration in the case of Rothecker v. Wolhowe, 39 N.D. 96" court="N.D." date_filed="1918-01-18" href="https://app.midpage.ai/document/rothecker-v-wolhowe-6738237?utm_source=webapp" opinion_id="6738237">39 N. D. 96, 166 N. W. 515 and Semerad v. Dunn County, 35 N.D. 437" court="N.D." date_filed="1916-12-21" href="https://app.midpage.ai/document/semerad-v-dunn-county-6737798?utm_source=webapp" opinion_id="6737798">35 N. D. 437, 160 N. W. 855, and the same statutes are involved. .Although the petition for the highway might have been more specific, we think that under the evidence the description “backbone or ridge” is sufficiently definite, followed as it was by a survey which was properly made and filed. All that the law requires is that the description shall be sufficiently definite to enable a surveyor to locate the highway and be intelligible to a reasonably intelligent man. Semerad v. Dunn County, supra; Yankton County v. Klemisch, 11 S. D. 170, 76 N.W. 314" court="Mich." date_filed="1898-09-20" href="https://app.midpage.ai/document/hall-v-mann-7939744?utm_source=webapp" opinion_id="7939744">76 N. W. 314.
The evidence shows conclusively that the backbone or ridge referred to was otherwise known as the Hogback road, and was a natural backbone or ridge or hogback, which at an early period was evidently the dividing line between two lakes, or, at any rate, the •shore of a lake, was well gravelled and graded by nature, of an average height of 110 feet and an average breadth of from 20 to 50 feet and extended for a length of about 5 miles, was in every way a natural highway, which was well defined and apparent to all, had been used for such for many years and for 16 years since the filing of the petition for the road, and had been driven on in the early ’60’s, in 1881, and continuously thereafter until the time of the 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 evidence also shows that the petitioner himself had used the highway for many years; that during these years some four or five hundred dollars was expended thereon and road taxes were worked thereon; that at no time until the beginning of the present action did he object to the same or claim that it was not a highway; that, on the contrary, he on
The case can be distinguished from that of Rothecker v. Wolhowe, by the fact that in that case there was not only no proof of an order for the highway being made, but there was testimony to the effect that it was “the custom of the board to quit when they got that far;” that is, when the petition was filed and acted upon. Here there is proof in the record that an order was actually made, and a survey made in accordance therewith, and properly .filed and recorded, and, though there is no proof of the filing of the order with the county auditor, we do not believe that the petitioner can at this late date take advantage of the fact. We do not, indeed, construe the word “deemed” which occurs in § 1927 of the Compiled Laws of 1918 and in the phrase “and in case the board having jurisdiction shall fail to file such order within twenty days they shall be deemed to have decided against such application,” to refer to an indisputable presumption, but to a disputable one, and to have been enacted- largely for the purpose of fixing the time in which either party might appeal from the decision of the board under the provisions of § 1935 of the Compiled Laws of 1913. There is authority, indeed, for the proposition that at this late date the plaintiff cannot question the fact of the filing, but it will be presumed, though we do not pass upon this point. Crimson v. Deck, 84 Iowa, 344" court="Iowa" date_filed="1892-01-27" href="https://app.midpage.ai/document/crismon-v-deck-7105205?utm_source=webapp" opinion_id="7105205">84 Iowa, 344, 51 N. W. 55; Gibbs v. Larrabee, 37 Me. 506" court="Me." date_filed="1854-07-01" href="https://app.midpage.ai/document/gibbs-v-larrabee-4929629?utm_source=webapp" opinion_id="4929629">37 Me. 506; State v. Alstead, 18 N. H. 59; Clarke v. Mayo, 4 Call (Va.) 374; Com. v. Logan, 5 Litt. (Ky.) 286.
Mindful, indeed, as we are of our decisions in the cases of Rothecker v. Wolhowe and Semerad v. Dunn County, supra, we are satisfied that under the particular facts of this case the petition has no standing in a court of equity. Ekwortzell v. Blue Grass Twp. 28 N. D. 20, 147 N. W. 726.
The judgment of the District Court is therefore affirmed.
Concurrence Opinion
I concur in the result.
Concurrence Opinion
I fully concur in the foregoing opinion, prepared by Mr. Chief Justice Bruce.