Casey v. Kilgore

14 Kan. 478 | Kan. | 1875

The opinion of the court was delivered by

Brewer, J.:

Proceedings were had before the county commissioners of Miami'county under the general road law of 1868, which resulted in the establishment of a road through the land of plaintiff in error. Being as he thought wronged by such proceedings, Casey filed his petition in error in the district court of that county to set them aside. The district court found no error, and affirmed the action of the commissioners. That ruling he now brings to this court on error.

1. section-line road act of 1872-The record of the proceedings before the commissioners is full, and contains the notices, with proof of posting and advertisement, the petition, bond, order, appointing viewers, notice to viewers, notice to plaintiff in error of time and place of meeting of viewers, plaintiff’s claim for damages, report of-viewers with plat of road, etc., remonstrance of Casey and others, and order of commissioners approving report of viewers, and ordering road established and opened. The principal question presented by counsel for plaintiff in error is as to the effect of chap. 181 of the laws _ , ot 1872 upon these proceedings. That act m the first section declares that all section lines in certain counties, among them the county of Miami, are public highways. The second and third sections provide for the contingency of a hedge or other valuable improvement being upon the section line, and the steps that must be then taken to open the road. Section four provides that when it shall be impracticable to open a road on any part of a section line the commissioners shall direct the road-overseer to take three disinterested freeholders and view the part said to be impracticable, and lay the road as near to the section line as practicable. There is in this act no express repeal of the general road law. So far from it, upon the same day by the same legislature was passed an act amending that law. And waiving the question discussed by counsel as to whether these proceedings were or were not commenced before the law of 1872 took effect, it seems to us there is nothing in that law which in any way militates against their legality and sufficiency. Both the laws may stand. Neither conflicts with the other. Because certain lines are declared to be highways, no restraint is thereby put upon the power to open other roads where the public interest demands it. This is not a case where the maxim, “expressio unius, exolusio alterius,” applies. The law of 1872 does not purport to cover the whole ground. It is in no sense, even for the counties therein named, a general road law. It simply as to those counties aims to supplement that law. Effect must if possible be given to both enactments. Repeals by implication are not favored. No attempt was made in this case to lay out a road upon the section line or upon the nearest practicable route thereto. It starts at the northeast corner of plaintiff’s quarter-section, and ends at the southwest corner of the same quarter, passing in its intermediate course in a very circuitous and zigzag manner through this and an adjacent quarter. The entire proceeding was under the general road law of 1868, and that law remains in full force, so far as anything in this case is concerned, notwithstanding the section-line road law of 1872. It is useless to inquire what effect the latter law would have had if the application had been to open a road upon the section line.

2.Bond for costs; misrecital. A second objection is, that the bond which was given did not in its description of the road conform to the petition, etc. The road prayed for and located commenced at the southeast corner of section 20, etc. The bond referred to a road beginning at the northeast corner of section 20, etc. This was doubtless a clerical error, and would probably under no circumstances have vitiated the bond, other matters therein showing clearly for what it was given. But even if the bond were fatally defective, that would not now vitiate the proceedings, for this, like all such bonds, was only conditioned to pay the costs and expenses in case the application for the road failed. It did not fail, but was sustained. If the objection had been made pending the proceedings, and the bond had been fatally defective, 'it might have stayed the proceedings until a sufficient bond had been given. But after the proceedings had terminated successfully, and in the establishing of the road prayed for, the bond ceased to have any value, and became wholly immaterial.

3.Description of road; sufficiency. Another objection made is, that “the description of the road as proposed does not show it to be east or west of any particular meridian, nor the county or state in which the proposed road is to be located.” "We think this , , /»ni , , n objection not iuliy borne out by the record, or at least that there is sufficient description to make clear and certain the location of that road. The petition recites that-“your petitioners are all residents of the county of Miami, and along and near the proposed line of said road” — gives the location of the road, as “commencing at the. southeast corner of section 20, town 16, range 23,” without it is true there giving the county or state, or stating whether the range was “range east,” or “range west” of any meridian — states as one of the intermediate points, “the crossing of Rock Falls on Bull creek,” and as the terminus the “ Paola and Marysville road.” There seems to have been no difficulty in ascertaining the location of the road, and we think the description was sufficient.

These are the principal matters complained of, and in them appearing no error, the judgment of the district court is affirmed.

All the Justices concurring.