Town of Great Scott v. Robinson

Lewis, J.

Action to enjoin defendant from obstructing a town road. Defense, general denial. The road petition was dated December 24,. 1901, and called for a road to be laid out “beginning at % post on Mountain Iron and Hibbing county road and continue or extend, on sections 22 and 23 and sections 14 and 15 for a distance of 1-J nliles farther north.”

1. In the description of the lands and their ownership, the proper-sections, subdivisions, town, and range were set out, and the petition was addressed to the supervisors of the town of Great Scott, in the-county of St. Louis, state of Minnesota. By reference to the entire petition the termini of the road may be definitely determined, and. the description is sufficient. State v. Rapp, 39 Minn. 65, 38 N. W. 926; State v. Thompson, 46 Minn. 302, 48 N. W. 1111; Thompson v. Town of Berlin, 87 Minn. 7, 91 N. W. 25.

2. The petition was filed in the office of the town clerk January-2, 1902, and the town board met on the sixteenth day of January- and fixed the time of hearing. The controlling statute, section 1807,. G. S. 1894, required that the petition be filed and a copy posted twenty days before any action be taken in relation thereto. Only-fourteen days had elapsed when the board first took action. . This was. a jurisdictional defect, and rendered the proceedings void. Anderson v. Supervisors of Town of San Francisco, 92 Minn. 57, 99 N. W. 420.

3. The evidence sustains the trial court in finding that the highway claimed to be in existence had not become such by user. The court found that the road was cut out to the width of two rods in the winter of 1902-1903, and was traveled somewhat as a winter road, but that it could not be traveled in the summer until graded, and it was not graded past the premises in question until the fall of 1903. This is sufficient to support the conclusion that the part of the road in question was not opened to the public until the fall of 1903. This action was commenced August 25, 1909, and hence the statutory period of use had not transpired at that time. There was evidence strongly tending to show that the road was surveyed and cut out for the distance of one mile only during the winter of 1902 — 1903, and that the remaining half mile opposite the premises here in question was not cut out or graded until after August 25, 1903.

Affirmed.