On Petition for Rehearing
Per Curiam.In a-petition for rehearing filed by the defendants, it is claimed that this court gave undue effect to the judgment rendered in the former action. It is claimed that that case only involved the highway on the south side of the southwest quarter of section 22 and did not involve the highway on the south side of the southeast quarter of section 21. It is also contended that the judgment in that case merely established the graded portion of the highway there in question as a highway, and that other portions which were not graded were unaffected by the judgment in the case. We are unable to give any such limited effect to that judgment. The complaint in that action stated that the plaintiff was the owner of the southeast quarter of section 21 and the southwest quarter of section 22 in township 148 north of range 51 west in Buxton township in Traill county; and that for some 15 years prior to the commencement of the action the defendant township had “unlawfully and without the consent of the plaintiff, and against his will, graded and maintained a highway upon plaintiff's land above described; the said highway being located on said premises as follows, to wit, commencing at a point two rods north from the point where the quarter line intersects the section line at the southwest corner to the southeast quarter of said section 21, thence in a straight line to a point four rods north of the point where the section lines at the southwest corner of the southwest quarter of said section 22 intersect each other, thence in a straight line to a point two rods north of the point where the quarter line and section line by the southeast corner of the southwest quarter of said section 22 intersect each other.”
*1187The following plat shows the tract of land described:
The complaint further alleges:
“That on account of the defendant so grading and maintaining such highway, the plaintiff has been deprived of the use of the land.upon which the said highway runs, to wit, six acres. .That the use of said six acres and the damage thereto caused by the grading and maintaining such highway by the defendant is of a reasonable value of $288.”
The answer in the case averred that the two tracts of land in question were surveyed by the United States government in 1873, and that — -
“The highway in question is located on the section lines in accordance with the United States government survey of said lands and the established mounds thereof.”
Also:
“That the said highway is a public road, and has been used for more than 22 years prior to the commencement of this action, and is so established as such highway by operation of law. That all work and labor in grading upon such public road was for the purpose of constructing and maintaining the same in the usual course of repairing and maintaining the public roads, and not otherwise, and does not exceed in width 33 feet along said section line, on the south side of the said described tracts of land.”
These were the issues as framed by the pleadings. The judgment *1188entered in this case specifically adjudged that—
“The government mound and section corner on the south section line between section 21 and section 22, in township 148 north, .range 51 west of the Fifth principal meridian, in West Buxton township, in the county of Traill and state of North Dakota, be and the same is hereby established in the center of the graded road for public travel at the said corner of said sections, and located when the said public road was located and graded by the board of supervisors of said Buxton township in the year A. D. 1888, and that the graded public road along the south side of the southwest quarter, of said section No. 22, and the south side of the southeast quarter of said section No. 21, in said township and range, as now located and graded, be and the same is hereby permanently established as a public road and highway for public uses and travel and to be used as such, as if laid out and established by due process and legal proceedings.”
According to the contention of the defendants, the judgment should be deemed to relate only to that portion of the highway on the south side of the two quarters which was actually graded at the time the judgment was entered. And evidence was adduced tending to show that the only part of the road which was graded at the time was where it crossed a slough or depression. If the judgment is given the effect contended for, it was an idle ceremony to enter it. It will be noted that the complaint alleged that a highway had been “graded and maintained” for the whole distance along the southside of the two quarters, and the judgment purports to establish and definitely locate the public highway on the south side of the southeast quarter of section 21, as well as on the south side of the southwest quarter of section 22. To hold that the judgment did not include the highway on the south side of the southeast quarter of section 21 would be to ignore the recitals in the judgment itself.
Rehearing is denied.
Bikdzell, C. J. and Bronson, Christianson, Grace and Robinson, JJ-, concur.