Semerad v. Dunn County

Bruce, J. (after stating the facts as above). Counsel for respondent first urges that the attack is a collateral one and upon proceedings which are quasi judicial in their character. He therefore asserts that the remedy of the plaintiff and appellant, if any, was by appeal, and not by injunctional proceedings. In this contention we believe he would-be correct, provided that the record showed that the proceedings mentioned covered the property now in controversy, and that a definite route was prescribed which should pass thereover. The portions of the statute which need to be considered here are' as follows: Section 1923, Compiled Laws of 1913: “The board having jurisdiction . . . may alter or discontinue any road or lay out any new road upon the petition of not less than six legal voters, who own real estate, or who occupy real estate under the homestead laws of the United States, or under contract from the state of North Dakota, in the vicinity of the road to be altered, discontinued or laid out; said petition .shall set forth in writing a description of the road and what part thereof is to bo altered or discontinued; and if for a new road, the names of the owners of the land, if known, over which the road is to pass, the point444 at which it is to commence, its general course, and the point where it is to terminate; etc.” Section 1924: “Whenever such number of legal voters determine to petition, as aforesaid, for the alteration or discontinuance of any road, or for the laying out of any new road, they shall cause a copy of their petition to be posted up in three of the most public places in the county or township having jurisdiction thereof twenty days before any action is had in relation thereto.” Section 1925: “When the board having jurisdiction receives a petition in compliance with preceding sections, . . . they shall, within thirty days make out a notice and fix therein a time and place at which they will meet and decide upon such application, and the applicant shall, ten days previous to such time as so fixed, cause such notice to be given to all occupants of the land through which such highway may pass, which notice shall be served personally or by copy left at the abode of such occupant. The said board shall also cause copies of such notice to be posted in the three public places in said county or township, at least ten days previous to such meeting; every such notice shall specify, as near as practicable, the highway proposed to be laid out, altered or discontinued, and the tract of land through which the same may pass, etc.” Section 1926: “The board upon being satisfied that the notices required in the preceding sections have been duly served . . . shall proceed to examine such proposed highway and shall hear any reasons for or against the laying out, altering or discontinuing the same, and decide upon the application as they deem proper.” Section 1929: “ . . . In case the board and the owners of land claiming damages cannot agree, ... the board shall in their award of damages specify the amount of damages awarded to all such owners, giving a bi*ief description of -such parcel of land in their award; •the board having jurisdiction shall assess the damages at what they deem just and right to each individual- claimant with whom they cannot agree, etc.” As far as the preliminary proceedings which are required by the statute are concerned, the necessary steps seem to have been taken with the exception that the petitions were not posted until March 15, 1909, and that the land of the plaintiff through which the road was supposed [445] to run and which is here involved was not mentioned or described; the petitioner was made a party defendant in the preliminary proceedings and was personally served. We do not believe that the failure to post the petitions until March 15, 1909, in itself deprived the'commissioners of jurisdiction in the matter. Even though the petitions were not posted more than twenty days before the posting and service of the notices of the meeting, they were posted more than twenty days before the meeting and the hearing on the petition, which was on May 18, 1909. Section 1925 provides that after receiving the petition the hoard shall have thirty days in which to make out a notice of the date and place of meeting to pass upon the same, and that that notice shall be served and posted ten days before such hearing. Section 1926 specifies, as the only prerequisite to the right of the board to proceed to a hearing in the matter, the satisfaction on their part “that the notices required in the preceding sections have been duly served It is true that § 1924 prescribes that “whenever such number of legal voters determine to petition, as aforesaid, for the alteration or discontinuance of any road, or for the laying out of any new road, they shall cause a copy of their petition to be posted up in three of the most public places in the county or township having jurisdiction thereof twenty days before any action is had in relation thereto.” This provision, however, we must construe in the light of the other sections mentioned and as a direction to the petitioners rather than to the board, and we must construe the word “action” which is therein contained to relate merely to the hearing and determination of the petition. The complaint admits that the notices required to be given by the commissioners were served. This service is elsewhere shown in the exhibits. The plaintiff, therefore, had the opportunity for his day in court and an opportunity after the petitions had been posted for more than twenty days. It is clear that although the property involved in this suit was not specifically described either in the petition or in the order or even in the survey, yet, if it was so described as to malee the route clear to any reasonably intelligent man, and since the petitioner was made a party defendant and served, a technical description was not necessary. [446] Dunstan v. Jamestown, 7 N. D. 1, 72 N. W. 899; Ekwortzell v. Blue Grass Twp. 28 N. D. 20, 147 N. W. 726; 37 Cyc. 75. It is also clear that no matter what may be the rule in other jurisdictions, in North Dakota an appeal lies from the determination of the commissioners, both as to the route to be taken and the damages to be awarded. See Comp. Laws 1913, §§ 1928, 1931, 1935—1939. If, therefore, the land of the petitioner was sufficiently described, and the order of the commissioners covered this land, and the survey was in conformity with that order, it is clear that plaintiff cannot in, this collateral attack question the regularity of the proceedings or the final determination of the said board. Ekwortzell v. Blue Grass Twp. supra. We are satisfied, however, that the land involved was not sufficiently described, and that, as far as this land is concerned at any rate, both the order of- the commissioners and the subsequent survey were nullities. They were nullities because they are absolutely unintelligible. 37 Cyc. 103; Beck v. Biggers, 66 Ark. 292, 50 S. W. 514; Re O’Hara Twp. Road, 152 Pa. 319, 25 Atl. 602; Rud v. Pope County, 66 Minn. 358, 68 N. W. 1062, 69 N. W. 886; Dunstan v. Jamestown, 7 N. D. 1, 72 N. W. 899. If the highway is being attempted to be opened along the line of the survey which was made two years after the filing of the order of the commissioners, the proceeding is entirely void. In any view of the record, that line does not start at the point contemplated by the order,, that is to say at the southeast corner of see. 23, or the northeast corner of sec. 26, but 92 feet west thereof. There is in the record no subsequent order approving this survey, and the survey, therefore, and the route therein prescribed, are absolute nullities. Dunstan v. Jamestown, supra; Butler v. Barr, 18 Mo. 357; Phipps v. State, 7 Blackf. 513. But even the order itself is unintelligible. After tracing the highway for a certain distance, it provides that it shall run “then east between sections 23 and 26, then diagonally across the east half of the northwest quarter, and then straight east between sections 25 and 30.” It will be noticed that nothing is said of the rvest half of the northeast quarter, and it is absolutely necessary that the highway should run through this half in order to reach the east half. But even if we assume that the road was to run through this half, where was it to begin and [447] where was it to end ? We may assume that it was to begin at the northeast corner of section 26, or the southeast corner of section 23, — in fact if it docs not begin there no other definite location is given and it begins nowhere, but where is it to end ? All that the order prescribes is that it shall run diagonally across the east half of the northwest quarter, and then straight east between sections 25 and 30. We are even compelled to interpolate the words “of section 25” after the northwest quarter, for the section is not given. Even if it is a northwest quarter of section 25 and the road is then to run straight east between sections 25 and 30, at what point on the line between sections 25 and 30 is the line to connect? The fact that the commissioners themselves were in doubt is evidenced by the fact that the survey and the order are inconsistent with one another. The word diagonal as a noun is defined by Webster as, “A right line drawn from one angle to another not adjacent of a figure of four or more sides and dividing it into two parts.” As an adjective it is defined “as joining two not adjacent angles of a quadrilateral or multilateral figure; running across from corner to corner; crossing at an angle with one of the sides.” If the angle formed by a diagonal line was required to be an angle of 45 degrees from the line which is at right angles with the point at beginning, the problem would be simple, but such is not the meaning of the word. It maybe at any angle with such ,a line and that angle is determined, not by the point of beginning, but by the point of ending. No man, however intelligent, can do any more than to guess at the intention of the commissioners, and such a description is not binding upon anyone. The judgment of the District Court is reversed and the cause is remanded for further proceedings according to law.