7 Kan. App. 302 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
John Balsinger, one of. the defendants in error, presented a petition to the board of county conimissioners of Geary county for the establishment of a highway, under the provisions of paragraph 5502 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 154, § 38). Prior to that time the plaintiff' had attempted to proceed under paragraph 5511, but had abandoned the proceedings. The petition was signed by Balsinger only. The board appointed viewers, and had proceeded as far as it had any jurisdic
The court sustained ademux-rer to this petition upon the ground that it did xxot state facts sufficient to entitle the plaintiff to an injunction restraining the viewers from making a view and the commissioners from considering and acting upon the report of the viewers. Section 29 contexnplates a petition sigxxed. by the person alone whose premises come within the provisioxxs of that section, and a petition signed by such person alone gives the board of commissioners-jurisdiction to act in the premises. It cannot be assumed that the commissioners will act in violation of law. The only thing the viewer^, could do would be to examine the px’emises and report, under the provision of the road law, whether the line of road proposed by the petition was practicable and of public-utility. It would then be the' duty of the board to determine whether the conditions to be overcome would justify the expenditure of the amount of damages that the viewers found woxxld necessarily be incurred by the establishxnent of the highway. As
It is contended that the petition duly disclosed the fact that it was an attempt to appropriate private property to private use, and not to establish a public highway. The allegations of the petition are not sufficient to sustain a holding by the court that the commissioners were about to appropriate the property of the plaintiff for a private use. The mere fact that the petitioner, Balsinger, had agreed in any event to pay the costs of the proceeding, instead of agreeing to pay them in the event .that his petition was denied, does not justify the court in holding, or assuming, that the commissioners would eventually proceed further in the case without lawful authority to do so. Under the provisions of section 29, to authorize the commissioners-to proceed, the viewers must report the same state of facts that must be shown by their report in the establishment of a highway under the prior provisions of the chapter; .and the commissioners must
The district court did not err, consequently, in sustaining the demurrer to the petition, and its judgment must be affirmed.