Beatty v. Beethe

23 Neb. 210 | Neb. | 1888

Reese, Ch. J.

This is a suit to enjoin defendants from opening a public road on a section line in Johnson county. It is alleged in the petition that no notice was given of the proposed action of the county board in opening the road, and, in .substance, that the proceedings to open the road were void. .It is insisted, upon the part of appellants, that the petition .does not state facts sufficient to constitute a cause of action, ■or entitle them to the relief prayed for. Upon an examination of the petition we do not think this objection can be sustained. It is alleged that no notice of the action of the board was given, of the time within which interested parties could file objections to the location of the proposed road, as is required by law; and that the plaintiffs are the owners of the land over which the proposed road will run, if opened. It is also alleged that no provision has been .made for the payment of these damages, and that the loea-,tion of the road will be an injury to them. It is tine it iis not alleged, in direct terms, that they will suffer an irreparable injury if the road is opened; yet we think the law is well settled that private property shall not be taken for public use, except in the manner provided by law; and if .it is sought to exercise the right of eminent domain, the statutory provision must be followed, or the proceedings will be void and injunction will lie. This objection to the petition was urged in the district court, but it wras overruled and a trial had which resulted in a decree in favor of plaintiffs, making the temporary injunction perpetual. .Defendants appeal.

As we view the case, it is necessary to examine but .one question involved, and that is as to the jurisdiction of -,the county board to order the opening of the road.

A petition was filed, a commissioner appointed, and he -made his report in favor of the proposed road. The county clerk then sought to issue the notice required .by .section 18 of chapter 78 of the Compiled Statutes of 1881, the law as it existed at that time. The section referred to required notice to be published to the effect (among other .things) that objections to the location of the road should be filed by noon of a day to be named in the notice, or the road would be located without reference thereto. A notice was issued by the clerk and publication was made, but the notice contained no reference to a time within which objections could be filed, or that objections could be filed at any time. This was necessary, not only by the plain provision of the statute (the form of notice being given in the section), but by section 26 of the same chapter, it is provided that such objections must be considered by the board, before making the final order for the location of the road. The notice was jurisdictional, and when it is shown by the record that it did not c'omply with the law in an essential element, tbe necessary jurisdiction or authority to make tbe final order did not exist, and plaintiffs nor their grantors having appeared in the proceeding, they are not bound by it. Robinson v. Mathwick, 5 Neb., 252. Doody v. Vaughn, 7 Id., 28.

■The decree of the district court is therefore affirmed.

Judgment affirmed.

The other judges concur.