Burke County v. Oakland , 56 N.D. 343 ( 1927 )

This action was brought under § 2500, Comp. Laws 1913, to determine the legal residence of an indigent person. The trial court found, as a fact, that his legal residence was in Thorson township, Burke county, and judgment was entered on the finding of fact and conclusion of law, and Thorson township appeals.

We have carefully read the testimony and it appears therefrom, that Carl Nyquist came to Burke county when he was fifteen years of age, he lived with his brother in Cleary township for one year, and then found work elsewhere, working as he says, "here and there," wherever he could find it. When he was twenty-one years of age he filed on a homestead upon which he lived for full five years, then made final proof and acquired title to the land. He rented the land to Emil Grubb for three years, and at the time of the expiration of the three years lease he rented it to Grubb for one year. He had a house of two rooms on the land, and in 1920 while Grubb was occupying the land, Nyquist built an addition to the house adding two more rooms. After acquiring title he placed a mortgage on the land which was foreclosed in 1923.

After renting the land to Grubb he took his stallion and Ford car, and traveled over the county staying wherever night overtook him, and putting up at the last place he visited on Saturday night and staying until Monday morning. When not traveling with the horse he left the horse at his brother's place in Cleary township, paying for its keep.

In the spring of 1923, he spent a week on the farm in Thorson township digging stones. He said that year would terminate the lease and he intended to go back and farm the land in the spring of 1924.

After leaving the farm in 1923, he went to Leaf Mountain township worked until harvest time, then returned and worked in Thorson township during the harvest, going back to Leaf Mountain township for the threshing season. One year he voted in Leaf Mountain township and never voted anywhere else in the county, except, in Thorson township. After the threshing in 1923, he worked for Carl Trulien in Leaf Mountain township digging potatoes and seeding rye, and while there, he was taken sick and taken to the hospital at Powers Lake. They took him from there to his brother's in Cleary township, and two days later took him back to Powers Lake, and he has been continuously sick and a public charge ever since.

Emil Grubb testified in effect that he came back to the place frequently in 1919 and 1920, that he often went through there when traveling his horse; would stop and stay overnight; that in 1920, he built an addition to the house of two rooms, and in the spring of 1923 he was there for a week digging stones upon the land. The testimony of Nyquist is corroborated in the main by Grubb, and it is clear from this testimony that the defendant lived continuously for five years upon his homestead, thus acquiring a legal residence in Thorson township. The evidence of his frequent visits, his building an addition to the house in 1920, and his digging stones on the land as late as the spring of 1923, all indicates that he had not abandoned his home and had not acquired a residence anywhere else.

Subdivision 6 of § 2501 reads as follows:

"Each residence when once legally acquired shall continue until it is lost or defeated by acquiring a new one in this state, or by voluntary absence from the county in which such residence had obtained for one year or more; and upon acquiring a new residence, or upon the happening of such voluntary absence, all former residence shall be defeated and lost, and the provisions of this section shall apply to cases of residence begun to be acquired or lost or defeated, as well heretofore as hereafter."

Having acquired a legal residence in Thorson township and there being no evidence that he subsequently acquired one elsewhere, the judgment of the trial court must be and is affirmed.

BIRDZELL, Ch. J., and BURR, CHRISTIANSON, and NUESSLE, JJ., concur.

On Rehearing.