Great Northern Ry. Co. v. Town of Viborg

Fuller, J. This appeal is from a judgment dismissing the complaint in an action by the Great Northern Railway Company to restrain the incorporated town of Viborg from placing a street crossing over the company’s right of way within corporate limits, and the right of respondent to thus proceed without paying damages is the question that controls the case. The disputed ground extends entirely across the right of way, 350 feet in width, and includes 33 feet on each side of a north and south section line upon which is located a thoroughfare 66 feet wide, designated “Main Street” on the village plat, and obstructed only by appellant’s roadbed and -railway tracks. -This section line highway having been kept in repair and constantly used as such for fully 20 years before appellant constructed its railway at the point above mentioned, it is needless to determine the legal effect of certain proceedings by the county commissioners instituted for the purpose of establishing such highway during the month of February, 1872. — 377 — As a portion of the territory along the section line was government land at least until the year 1877, it is urged by counsel for appellant that the statute creating highways by 20 years’ adverse user is not to be considered. Without any reservation except as to lands devoted to the use of the public, Congress, on the 26th day of July, 1866 (14 Stat. 253, c. 263), granted the right to construct highways over public lands, and the rule that a highway cannot be established by prescription as against the government has no application to any portion of the public domain within such grant: Township v. Skauge, 6 N. D. 382, 71 N. W. 544. This government grant, when accepted by the territorial act of January 12, 1871, took immediate effect as against the grantee and all persons claiming thereunder whose rights became subsequently vested. Wells v. Pennington County, 2 S. D. 1, 48 N. W. 305, 39 Am. St. Rep. 758; Keene v. Board of Sup’rs of Fairview Tp., 8 S. D. 558, 67 N. W. 623; Riverside Township v. Newton, 11 S. D. 120, 75 N. W. 899. According to the recorded plat of the village, Main street is co-extensive with the original highway up to the southern boundary line of appellant’s right of way and down to the northern boundary line thereof, along which it extends westerly about 330 feet to an overhead crossing, and thence back to the section line on the opposite side of the right of way. Respondent’s right to use this section line highway as a village street at the point in dispute was not taken away- by the construction of the railway track across it, nor has the temporary employment of the overhead crossing, erected by appellant at a different place, conferred an interest in the fee upon which such corporation may base a claim for compensation. By incorporating the village of Viborg under and — 378 — according to the recorded plat, the streets and alleys as there dedicated were doubtless accepted by the municipality, but such action could not impair the right of the public to use the section line for the purpose to which it was indefeasibly dedicated by the act of Congress above mentioned. The judgment appealed from is affirmed.