State ex rel. Lutt v. Raymond Township

100 Neb. 788 | Neb. | 1917

Rose, J.

This is an appeal from an order allowing a peremptory writ of mandamus commanding Chris Johnson, as road overseer of Raymond township in Knox county, to open a public highway four rods wide on a section line in what was a part of the Sioux Indian reservation whicli was allotted to Indians and opened to settlement by the act of Congress of March 2, 1889. 25 U. S. St. at Large, ch. 405, p. 888. The act provides: “There shall be reserved public highways four rods wide around every section of land allotted, or opened to settlement by this act, the section lines being the center of said highways; but no deduction shall be made in the amount to be paid for each quarter-section of land by reason of such reservation. But if the said highway shall be vacated by any competent authority the title to the respective strips shall inure to the then owner of the tract of which it formed a part by the original survey.” 25 U. S. St. at Large, ch. 405, sec. 21; p. 897.

Most of the lands along the highway in controversy are Indian allotments, the title to which is being held-by the United States as trustee for the allottees.

Respondent contends that the Congress did not grant or dedicate land for highways on Indian allotments, and that the word “reserved,” in the connection in which it is used in the statute, means that the United States retained the title to land intended for highway purposes. The Congress “reserved” a piece of land “four rods wide around every section of land allotted, or opened to settlement.” The word “reserved” should be construed in connection with the context and the obvious purpose of the legislation. The object was to permit Indians to hold allotted lands in-severalty and to open the remainder of the reservation to settlers under the homestead laws. For these purposes highways were necessary. It was the intention of the lawmakers to allow allotted lands and homesteads to pass in due time from the control of the Congress to private individuals. It was not the intention. to retain a narrow piece of land around each section. This is shown by the act itself, which declares: “But if the said highway shall be vacated by any competent authority the title to the respective strips shall inure to the then owner of the tract of which it formed a part by the original survey.” 25 U. S. St. at Large, ch. 405, sec. 21, p. 897.

It is also contended that, under a later act, a highway over allotted land in an Indian reservation cannot be opened without the consent of the secretary of the interior, and that his consent was not procured.’ The new legislation is found in the- act of March 3, 1901, and provides: “The secretary of the interior is hereby authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper state or local authorities for the opening and establishment of public highways, in accordance with the laws of the state or territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indians under any laws or treaties but which, have not been conveyed to the allottees with full power of alienation.” 31 U. S. St. at Large, ch. 832, sec. 4, p. 1084.

The enactments do not contain contradictory or inconsistent provisions. The act of 1889 contains a special provision relating to highways in the Sioux Indian reservation. The act of 1901 is a general one and does not in direct terms or by implication amend or repeal the former law. Both may be enforced as enacted. Jackson v. Washington County, 34 Neb. 680; State v. Clarke, 98 Neb. 566.

Respondent contends further that there has been no proper acceptance of the highway. The grant or dedication by the Congress respects the public policy of Nebraska as declared by an act providing that “the section lines are hereby declared to be public roads in each county,” and that “the county board may, whenever the public good requires it, open such roads.” Rev. St. 1913, sec. 2899. The county board of Knox county, July 16, 1908, made an order for the establishment of the highway in controversy. Acceptance of the grant or dedication is shown.

Notice to file claims for damages was given, but no claims were filed. The necessity of making provision for the payment of damages as a condition of opening the highway is therefore not determined.

The peremptory writ was properly allowed.

Affirmed.