32 Kan. 555 | Kan. | 1884
The opinion of the court was delivered by
The facts in this case are as follows: In 1878, upon the petition of John Standley, a public highway was located, and ordered to be opened on the section line between the southeast quarter of section 11, and the northeast quarter of section 14, in township 30 south, range 10 east, in Elk county. On October 12, 1880, the plaintiff filed his petition before the board of county commissioners of Elk county to vacate this road. At the meeting of the county commissioners on April 13,1881, upon the presentation of the petition, viewers were appointed, and May 18, 1881, was designated for their meeting. No notice was given by the county clerk setting forth that a petition for the vacation of the road had been presented as required by § 3, ch. 89, Comp. Laws of 1879. Thereafter, the viewers met and redommended that the road be vacated. On July 6, 1881, the commissioners adopted the report of the viewers, and ordered the road to be vacated. On January 4, 1883, upon the application of one Daniel Dougherty, a resident of Howard township, in said Elk county, the commissioners set aside the order of vacation on account of the alleged irregularities, and ordered the road to be reopened. On April 3, 1883, the plaintiff brought this action to enjoin the defendants from opening the road. ' A temporary injunction was issued by the probate judge of Elk county. Thereafter the case came on to be heard, and after the plaintiff had introduced his evidence the defendants demurred thereto. The court sustained the demurrer, and the plaintiff excepted.
The questions arising in the case are two: First, were the proceedings of the board of county commissioners of Elk county valid in vacating the road in controversy ? Second, if not valid, was the road originally established by legal authority? As no
In this connection, it is proper to add that the record of the board of county commissioners purporting to vacate the road does not contain everything which the statutes require to be preserved and kept in such,a proceeding. It does not appear that the county commissioners caused a record of the notice to be entered on their journal by the county clerk. Again, there are other omissions. (Comp. Laws of 1879, ch. 89, §3; Willis v. Sproule, 13 Kas. 257.) This brings us to the question, whether the road was originally legally established? The road was located on July 3, 1878. Therefore, at that time the provisions of ch. 108, Laws of 1874, (ch. 89, Comp. Laws of 1879,) relating to roads and highways, were in force. The petition for laying out the road was in due form; the proper bond was executed; viewers were appointed as required by
The judgment of the district court will be affirmed.