LETER ON FLOODED ROADS - September 4, 1924
Reply referring to the following:
Department of the Interior
Office of Indian Affairs
September 4, 1924
(Received date stamped September 8, 1924 Hayward Indians School)
TO: James P. Ryder
Superintendent Hayward Agency
My dear Mr. Ryder:
This will refer to your letter of August 13th, any further reference
to the road to be built by Northern States Power Company, inclosing petition
for, and order of discontinuance by the board of supervisors of the town
of Hunter, of a highway within the reservation area. In your letter of
July 7th, you state that this action on the part of the supervisors was
based entirely upon an agreement between the power company and the board
relieving the town of all damages resulting from the discontinuance of
said road, the power company then being the owner of the land traversed
by the road.
In the letter mentioned you further say that this involved the roads and bridges used by Indians at the Old Post as an outlet to Hayward and Winter, and lying with in the boundaries of the reservation; that there is no evidence of any objections to discontinuance being made by the Indians or the superintendent; and that the roads and bridges were built and maintained by the town of Hunter.
It is noted that the acceptance by the Indians of the Couderay road with the proviso that such action does not prejudice their interest relative to securing an outlet to Winter in lieu of roads discontinued by the town board of Hunter. Dr. Eastman’s report shows that this proviso was incorporated of the formal motion, which carried unanimously.
In your letter of August 13th you say –
“If the Office is of the opinion that the enclosed documents have any value in procuring for the Indians of the Post a road to Winter, I respectfully recommend that proposition to accept the road to Couderay be rejected… but on the other hand, if the office considers the discontinuing of highways a question for settlement solely between the town of Hunter and the power company, then I recommend that the road to Couderay be accepted.”
Apparently the basis for the proviso is found in Mr. Frank H. Thayer’s remarks during the council as follows:
“Now Doctor, I presume you know the Wisconsin Statutes, that says in it about condemning public roads. If I remember right, it goes on to say any road, whether it has ever been legally described or not, when it has been in use for 20 years or more, becomes a public highway, and is considered so, and before any corporation or any individual would step in and condemn it. They would have to first build another one in its place. These people came on there and condemned those roads. They perhaps have had the right, but they did not make provisions for other roads.”
No doubt Mr. Thayer refers to that portion of Section 1294, Wisconsin Statutes 1898, reading as follows:
“All roads not recorded which shall have been or shall be used and worked as public highways, ten years or more, shall be deemed public highways…”
You will observe the period is 10 years instead of the 20 years stated by Mr. Thayer. No provision has been found in the Wisconsin Statutes requiring any corporation or individual to replace such a highway with another as a prerequisite to the condemnation thereof for public purposes, it only being necessary that the assessed damages be paid to the owner of the land. As the Wisconsin-Minnesota Light & Power Company, the owner of the land in this case, specifically waved any damages, it would seem that the law had been complied with. This being the case, it does not appear that the Indians have any claim against the town of Hunter for the construction of a road to Winter or any other place in lieu of that discontinued by the board of supervisors.
In discontinuing the road, the supervisors evidently proceeded under Section 1265, Wisconsin Statutes 1898, as follows:
“When six or more freeholders, or applicants for a homestead, under the laws of the United States, co-occupy the same, residing in any town, shall wish to have a highway laid out, widened, altered, or discontinued in such town, they may make application in writing to the supervisors of the town in which they reside, for that purpose; and the said supervisors shall proceed to lay out, widen, alter, or discontinue such a highway if in their opinion the public good will be thereby promoted.”
Manifestly the only reason for the action of the board of supervisors in discontinuing the road was that it would be inundated by the reservoir. It is not apparent that the town of Hunter is under any obligation to the government or to the Indians with respect to replacing the road discontinued. It would seem that any rights which the government of the Indians may have in connection with roads in the reservoir area arise under articles 13 and 21 of Federal license granted to the power company, as follows:
“The licensee shall provide new homes for the Indian families living on tribal lands at ‘The Post’ or elsewhere within the reservoir site, such homes to be of equal value to those now occupied and as accessible to roads, and to have as much cleared ground as at present, and in all respects to meet with the approval of the Commissioner of Indian Affairs.”
“The licensee shall be liable for injury to or destruction of any buildings, bridges, roads, trails, lands, or other properties of the United States, occasioned by the construction, maintenance and operation of the project works, or of the works appurtenant or accessory thereto constructed under the license.”
Such being the case, it is believed the discontinuance of the roads covered by the order of the supervisors is a matter solely between the town of Hunter and the Power Company, and the government and the Indians have no interest therein. However should it later develop that the Indians have, in fact, a claim against the town of Hunter for a road to Winter or elsewhere, in lieu of the highway discontinued by the board of supervisors, it is not seen how the acceptance of the Couderay road can in anyway prejudice them with respect thereto, the two propositions being entirely separate and distinct.
Under the circumstances, therefore, you may proceed in conformity with the Office letter of August 6th, and advise the Power Company accordingly, as recommended by Dr. Eastman in his report.
Please acknowledge receipt hereof, with advise of action taken.
Very truly yours,
Charles H. Burke