169 N.W. 580 | N.D. | 1918
Lead Opinion
Pursuant to a contract of purchase made in 1890 defendant owns section 33 in township 144 of range 81 in McLean county. The land is adjacent to the banks of the Missouri river and in places along the south and west section lines it is rough and intersected by streams or creeks so that the south and west section lines have not been opened and used as a public highway. Hence, the highway on the south of the east half of the section is a little south of the section line, and from the southwest corner of the southeast quarter, the highway runs north of northwest until it crosses the west line of the section some 120 rods south of the north line, and then it runs north and parallel to the western line.
This is a part of the main road from Wilton to Washburn. It is a continuation and relocation of an adjacent road which for some forty years was located, used, and traveled in the same general direction across said section, and such relocation was duly surveyed, made permanent by order of the county commissioners of McLean county pursuant to a petition duly filed with the county auditor in the year 1900. On such petition road viewers were duly appointed. They made a report to the county commissioners in favor of such relocation and
Tbe present relocation was of great benefit to tbe defendant because it vacated the adjacent road across said section where tbe land is more valuable then at tbe present location, and it shortened tbe road by making it more direct and left defendant free to use tbe south and western section lines. Tbe defendant did not appeal from or protest against said permanent location nor against tbe construction of the bridge or tbe survey and improvement. Indeed, be acknowledged and acquiesced in the relocation by constructing fences along tbe highway and by demanding compensation for tbe site of tbe same, but, as tbe county commissioners did not award him damages, since 1915 or 1916 be has on occasions attempted to obstruct tbe use of the highway, though any such obstruction is a public nuisance.
Under tbe statute any person feeling aggrieved by an order of tbe county commissioners in locating a highway or in making an award of damages has a right of appeal, and in case no appeal is taken, then, after tbe lapse of one year, tbe order of tbe county commissioners in altering or discontinuing a highway becomes final. Highways are a public necessity, and tbe highway in question is a necessity and a convenience to tbe public and to tbe defendant himself. He knew, or should have known, of tbe location of the highway and tbe building of tbe bridge and its approaches, and be acquiesced in tbe same, and be has sustained no damages.
Hence it was entirely proper that he should be enjoined from committing a public nuisance by obstructing the highway. Tbe case is entirely clear and needs no argument or citation of authorities.
Judgment affirmed.
Concurrence Opinion
(concurring specially). A careful consideration of the evidence in this case leads me to the conclusion that the defendant ought to be enjoined from obstructing the highway involved in this controversy. I am therefore of the opinion that the tidal court properly rendered judgment in favor of the plaintiff, and that such judgment should be affirmed.
