The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1919-03-12
APPEAL THAT
W ILL INVOLVE
OVER BILLION
Title 10 Every Section Line in
North Dakota and .Adjoin-
ing States Questioned
BURKE GOES TO CAPITAL
Former Associate Justice ia
Argue Important Case BE.
fore U. S. Supreme Court

Judge and Mrs. E. T. Burke Lett
last night for Washington. D. c..
where he will represent the township
OF I-allie. Benson county. in & suit
brought by John d. Faxo4 contesting
the right OF the township 10 take a
section line for highway purposes.
and which involves in North Dakota
title to 1850 miles OF section lines
reserved for highway purposes and Of
an estimated value OF sl12.S6S. 200.
Faxon. who appealed TO the supreme
court of tae United States after hav-
ing been defeated in the district and
supreme courts OF North Dakota.
claims that his land seized for high
way purposes, and for which he claims
S.S1 as payment for & e6-ioot strap a->
mile long, was not covered oy the act
OF congress OF July p, 1866. establish
ing public highways, because h.s par
ticular farm CHANGED 10 lie within
the boundary OF what lad fnce zen
the Devils Lake Indian reservation.
The township insists thai Mr. Faxoa's
farm was part OF the public domain
July 2e. 1866. upon which .iare con
SASSS uSN1S~skSN u AktS Sc(LluI! IitleS
in public domain 10 s width OF 90
feet for public highway purposes:
that by Chapter 81. session laws OF
ISL. the territory OF Dakota accent
ed the township and declared all OF the
section lines in the territory OF Da-
kOla TO be public highways: that said
lands were surveyed and section lines
esta blished in 1875. and that the high
way in question became established
on the 26th day OF July. 1866, and that
any person thereafter receiving pat
ent from the government took the land
subject 10 the easement for highways
so created.
The defendant contends that the es-
tablishment in June, 1904. did not con-
stitute such a public use of the lands
as to exempt it from the provisions
OF the highway act, and that when the
plaintiff filed upon this tract as a
homestead in 1905 and received: his
patent in 1905. he took this lad sub
ject TO the highway easement. already
- .,...,., y, ,,..
The township alleges that it did not
refuse to pay for consequent damages
TO Faxon's land, but that i, assesse
his benefits and damages as equal ID
offset one against the other. : : .
49,. Big Question Involved. .azs ~, d.
In conclusion, the hrief, filed with
the. supreme court Of the United
States by Judge Burke, c. L. Young
OF Bismarck and 7. II. Burke of Har-
din, attorneys for the defendant,
says. m :, ~ .,n.,'s ....u Z.
In spite Of appellants highly III
geni0us argument we maintain that
Faxon occupies no different position
than any OF his neighbors, nor, in
deed, Of any other landowner Of this
state. True, he settled upon what was
once an Indian reservation, but mil
lions of acres of North Dakota, have
been so included at some time. Also
ne chose land for homestead viii Il
straddles the section line, but he did
that to get near the village of Lallie,
and besides damages are not to be
considered in this lawsuit. His dam
age, then, is also the damage of every
man who owns land Adjoining a sec
ton line If Paxton Nns this suit,
every landowner in the state may sue
his township and recover. There are
about 342 section lines running north
and south, each about 21O miles in
length, and the east and west lines to-
tai the same. We have, then, 143,e4O
miles Of section lines in the state Mr.
Faxon asks $3.50 for five-eighths of a
mile-at which rate the liability OF
the several townships of the state
reaches the sum of $172,36S,O0O, and
Iowa, Minnesota, South Dakota and
some twenty other states are in the
same position, because most of their
lands have been patented since 1866.
The liability of all these townships
will be over a billion dollars, to say
nothing of the costs, attorneys fees
and hard feelings between neighbors.