69 P. 320 | Idaho | 1902
— This action was commenced by the appellant, as. plaintiff, to condemn a strip of land belonging to the respondent, J. J. Toole, twenty-five feet wide and one-half mile long, and another strip of land belonging to the respondent, J. L. Johnson, twenty-five feet wide and one-half mile long. The complaint alleges the corporate existence of the appellant county, after which the allegations in said complaint are as follows:
“1. That the county of Canyon, plaintiff herein, is a municipal corporation, created and existing by virtue of the laws of Idaho.
“3. That thereafter, and on April 10, 1899, at the regular meeting of the said board, the said petition was regularly considered, and found to be proper in form and in substance, and on motion an order appointing three proper persons to view and survey the said proposed route, and submit their report to the said board, was duly made.
“4. That thereafter, and on April 7, 1900, the said viewers filed with the clerk of the said board their report, showing that, after first having been duly sworn to discharge their duties faithfully, they had viewed and surveyed the proposed road over the most practicable route, and had notified all the owners of the land over which it passed of the fact, and obtained the written consent to give the right of way from all of the said land owners, except G. W. Shurtliff, W. W. Stone, H. H. Kelly, E. Stuart, and J. J. Toole, and had estimated the damage to the nonconsenting land owners at thirty-five dollars, twenty-five dollars, twenty-five dollars, seventy-five dollars, and seventy-five dollars, respectively, and had estimated the total cost of
“5. That thereafter, and on July 19, 1900, at the regular meeting of the said board the said petition and said report came on regularly for hearing, and on motion it was duly ordered that the eleventh day of September, 1900, be set for the time for hearing the said petition and considering the said report, and that the clerk give legal notice to all noneonsenting land owners, and to all persons interested in same, of the said facts.
“6. That thereafter, and on September 11, 1900, the said matter came on regularly for hearing as ordered, at the appointed time, and the said board found from the evidence that written notice had been duly served upon all of the nonconsenting land owners ten days prior to the said day fixed for the hearing of the said report, and that it was necessary for the said board of commissioners to make a personal examination and observation of the said proposed road; and upon motion it was duly ordered that the further hearing of the said matter be continued to the regular meeting of the said board on October 9, 1900.
“1. That thereafter, and on October 9, 1900, the further hearing of the said matter came on regularly as appointed before the board, and the evidence of all parties, and of all nonconsenting land owners personally, was heard and considered, and, after due deliberation and consideration of all the evidence and facts, it was found that the said road was a necessity and great public benefit; and on motion it was duly ordered by the said board that the said report be approved, and the said petition be granted.
“8. That thereafter, and on January-, 1901, at the regular meeting of the said board, upon suggestion, it was ordered that February 25, 1901, be fixed as the time for further considering the said petition and report; and the clerk of the said board was ordered to give legal notice to all nonconsenting land owners and all persons interested in the said proposed road of the said meeting, and the purposes thereof.
"10. That all of the nonconsenting land owners have accepted and have been paid the said sums so estimated by the said viewers, excepting the said J. J. Toole and E. Stuart, and that the said E. Stuart had transferred all of her right and title in and to the said southwest one-quarter of section 14, township 9 north, range 5 west of Boise meridian, as shown on the said plat, to one J. L. Johnson, one of the above-named defendants herein, after the said report of the said viewers was made.
"11. That the road supervisor of the said road district tendered the said sum of seventy-five dollars to each of the said defendants on the second day of March, 1901, and has at all times been and now is, ready to pay the same, but that the said defendants each refused, and now refuses, to accept the said offer.
“12. That all of the persons owning land over which the said proposed road passes who now still refuse to give the said right of way are the said J. J. Toole and the said J. L. Johnson, defendants herein, and that the land owned by the said J. J. Toole, over which the said proposed road passes, is
“Wherefore plaintiff prays judgment:
“1. That a right of way for the purposes of a public highway fifty feet wide, and extending from the center of the south line of section 14, in township 9 north, range 5 west of Boise meridian, in a northerly direction, one-half mile along the said half section line, and twenty-five feet on either side of the said line, be condemned and purchased and opened and used for the said purposes, as set forth in this complaint.
“2. That the road supervisor of the said road district No. 1 be directed to pay the said sums of money into court for the uses of the said defendants, viz., seventy-five dollars for
“3. That the said road be ordered opened according to law.
“4. And that defendants be ordered to pay the costs and necessary expenditures of this proceeding; and for such other and further relief and orders as to the court may seem necessary, just and equitable.”
To the said complaint the respondents demurred upon the ground that the said complaint does not state facts sufficient to constitute a cause of action against said defendants, or either of them. Said demurrer was sustained by the court, and, appellants having elected to stand upon said complaint, a judgment dismissing the action was regularly entered in favor of the respondents, and from which the appellants appeal.
It is argued by the respondents that the allegation in said complaint that the petition presented to the board of commissioners was “signed by a number of more than ten residents and taxpayers of the said road district is not sufficient, and that it should have been alleged that they were residents of said road district, and taxable for road purposes.” We think the allegation sufficient. Under the provisions of section 4 of the act of February 7, 1899 (see Sess. Laws 1899, p. 129), an annual property tax for road purposes must be levied upon all property. Persons subject to pay poll taxes are required to pay a special road tax; hence all taxpayers are taxable for road purposes.
It is also urged against the sufficiency of said complaint that there was no allegation to the effect that the bond presented with the petition to the board of commissioners was approved by the board. The complaint does allege that the petitioners presented the required bond, and that the same was duly filed. The board recognized the sufficiency of the petition and of the application, and also the sufficiency of the bond, by appointing viewers to view and survey the proposed road, which has been held to be sufficient evidence of the approval of the bond by the supreme court of California under a statute identical with
"We think said complaint sufficiently alleges the consent of the owners of the land over which the road ran, with exception of the respondents and others, and that all of said owners, after the survey and viewing of said proposed road, accepted the price fixed by the viewers, with the exception of the respondents. The allegations in said complaint sufficiently show that the board fulfilled the requirements of the statute as to the meetings of the board, etc.
The objection that the complaint failed to show that the respondent J. L. Johnson had no notice is not well taken. The complaint avers that the predecessor in interest of the respondent Johnson, namely, E. Stuart, sold and transferred the land in question, owned by respondent Johnson, after she had received notice, and after the said viewers had made their survey and report, and that he had actual notice and attended the meetings of the board of commissioners; and he cannot now he heard to say that he had no notice, if the allegations in said complaint in this regard are true.
The objection that the complaint does not allege a tender cannot be sustained. The complaint alleges that the damages to each of the respondents growing out of the appropriation for a public road of the strip of land in question amounted to the sum of seventy-five dollars to each of the respondents, and that said sums were tendered by the road overseer before the commencement of this action, and that said overseer had at all times been ready and willing to pay each of respondents said sum. The complaint sufficiently avers that the board had ordered and directed the county attorney to commence this action.
A careful examination of the complaint convinces us that it alleges facts showing a substantial compliance on the part of the county commissioners with all the requirements of the statutes relating to the condemnation of the necessary land for the road mentioned in the complaint. It is argued, however,
The judgment is reversed, and the cause remanded, with instructions to the lower court to set aside the order sustaining the demurrer and to overrule the same, and for further proceedings consistent with this opinion. Costs awarded to appellant.
