95 Neb. 389 | Neb. | 1914
A petition was filed by the county of Clay, alleging that it had established a public highway, and that defendants Howard, then owners of the land taken for the highway, were awarded the sum of $315 as damages; that the land has been sold and conveyed to the Howards, and that the defendants Wiberg and McClellan are now the owners; that the road is about to be opened, and the county desires to pay the damages awarded; that the defendants Howard claim the full amount of damages; that the present owners of the land also claim the money, and that the defendant Christy claims and asserts an attorney’s lien against the award made in favor of the Howards; that the plaintiff does not know who is entitled to the fund; that it had deposited the money with the clerk of the court, and tenders payment to whoever is entitled to the same. It prays that the court shall find and determine who is entitled to share in the fund, and the amount to which such person is entitled. Afterwards an amended petition was filed, setting out the proceedings more specifically, and bringing into court and tendering $315, with interest thereon at
Tbe Howards insist that tbe order establishing the road and allowing tbe amount of damages constituted tbe taking and appropriating of tbe land, and that they, being-then tbe owners of tbe land and prosecuting tbe claim for damages, were entitled to receive the amount awarded, citing Harlan County v. Hogsett, 60 Neb. 362, and Chicago, B. & Q. R. Co. v. Englehart, 57 Neb. 444, to tbe effect that damages for land appropriated for a highway accrue at the date of condemnation, without regard to tbe time the road is actually opened.
Furthermore, no valid provision was made for the payment of damages, so far as is shown, until after the present owners bought the land. At the time the road was established and proceedings were had to ascertain the damages, there was no provision in the statutes whereby a county could become liable for damages to the OAvners of land taken for public highways, and the money could only be
In 1901 the statute was amended so as to- provide that all damages caused by the laying out, altering, opening, or discontinuing any county road shall be paid by warrant on the general fund of the county, etc. Rev. St. 1913, sec. 2881. In Sittler v. Board of Supervisors of Custer County, 91 Neb. 111, the county board had ordered damages paid out of the road fund of the road district. This order was made after the amendment of 1909, whereby it was provided that damages “shall” be paid out of the general fund of the county. It was held that no provision for the payment of damages had been made by the appropriation of money from the proper fund, and the opening of the road was enjoined. Tested by this principle, at the time the road was established and the land, sold by the Howards, no legal provision had been made for the payment of damages, since there was no authority to pay the same out of the county funds. The owners of the land in 1909 had a right to stand upon their constitutional rights and refuse to allow the road to be opened until their damages had been ascertained by the appointment of appraisers in the legal manner.
The county, however, having brought money into court for the purpose of paying the damages, and the present owners of the land having signified their desire to accept the amount tendered and to allow the opening of the road, the right to a new appraisement has been waived by them, no right to further damages exists, and the county is vested with full authority to open the road. This authority is derived, not from the proceedings in 1894 to ascertain damages, but from the order of the county board opening the section-line road and the acceptance of the' money tendered for damages. We are of opinion, therefore, that the district court was right when it held against the right of the Howards to the damages, and in favor of the present owners of the land.
The judgment of the district court is therefore reversed and the cause remanded to the district court, with directions to render a judgment in favor of the appellees Wiberg and McClellan for the full amount of the money paid into court by the county in payment of damages; costs in the district court to be taxed as before.
Reversed.