14 Mont. 292 | Mont. | 1894
Lead Opinion
By this action plaintiff invoked the power of the court to enjoin the opening of a road through his land, in his complaint alleging: His ownership of a tract of valuable farming land situate in Gallatin county, giving a particular description thereof; that defendant board of county commis
It is apparent from the record and briefs of counsel that the demurrer was sustained because, in the opinion of the court, the complaint, with the exhibits thereto, shows that the county commissioners had proceeded regularly, and according to the provisions of statute, in the matter of ordering said road opened, as far as that proceeding had gone before injunction issued. With this premise, we proceed to examine the claims on which plaintiff’s counsel insist that the proceedings for opening said road are void, as specified in the complaint and their brief.
It is several times averred in the complaint that the proposed road is not sufficiently described in the proceedings for opening the same; but nowhere, either in the complaint or brief, is there specification of defect or error in such description. The proposed road appears to have been sufficiently described to enable plaintiff to make a verified allegation in his complaint that said road “runs through plaintiff’s said land a distance of a mile, and for a distance of half a mile, runs through said land diagonally”; that such road will appropriate about six acres of said land, and compel plaintiff to build a mile and a half of fence, at a cost of two hundred and eighty-eight dollars. It seems that plaintiff was able to deduce from the description of said road such exact data as to its ¡proposed location and effect on his premises, and all this appears to be directly and readily deducible from the description of
There is also an objection that the petition for the opening of said road did not accurately describe the same, and furthermore, that the road, as finally ordered opened, after report of the viewers, and consideration of the question of opening such road, deviated somewhat from the description in the petition therefor. It is not unlikely that after report of the viewers, and consideration by the county commissioners of the question of opening such road, some deviation from the original proposed location, as set forth in the petition, might be made. Nor has any provision of law been cited, or any reason suggested, forbidding such an exercise of discretion on the part of the public agents charged with the duty of establishing public highways. Such objection seems to be without force. Besides, in this case, the variation between the petition and final order for opening the road does not appear to be very great.
It is further contended that the proceedings of the county commissioners in this matter did not show that the viewers appointed were qualified “as householders of said county,” as provided by statute. The resolution of the board of county commissioners authorizing the opening of said road, a copy of which is attached to the complaint, recites “that, in accordance with the order of said board of county commissioners, made March 14, 1893, appointing three persons, who possess the
Again, it is alleged in the complaint, and contended on this appeal, that said proceedings of the board of county commissioners are void because two of said road viewers were brothers-in-law, and one of them a petitioner for the opening of said road. This is the only objection found in the case which appears to be of any force. It is of paramount importance, as a safeguard to the administration of justice, that those appointed and empowered to decide upon the rights of parties involved in controversy should be disinterested and unbiased; and probably, even in the opening of a public highway, the better rule would exclude from the viewers those who petition for, as well as those who oppose, the opening of the same. But inasmuch as no statute is violated in appointing a petitioner, and inasmuch as the action of the viewers is neither final nor controlling, but their recommendation, at most, is advisory to the board of county commissioners, subject to be objected to, contradicted, and disregarded by the board of commissioners, in its final consideration, and, on the vital question of damage by reason of opening such road, the parties have a right to demand that the same be submitted to a jury, and to appeal to the district court, if dissatisfied, we think, in view of these conditions, the objection that the petitioner was also a viewer is not sufficient to avoid the proceedings. The fact that two of the viewers were related to one another, as brothers-in-law, does not, in our opinion, amount to ground of exception. Jurors sitting in the trial of a cause may be related, and yet
A further objection urged against these proceedings is that neither the report of the viewers nor the order directing said road to be opened designated the width of the proposed road. The statute on this subject provides that “all public highways hereafter laid out in this state shall be sixty feet in width, unless otherwise ordered.” (Comp. Stats., div. 5, § 1822.) In this proceeding it was not otherwise ordered as to the width of said road, and therefore its width is fixed by law; and there is no presumption that the supervisor would depart from the requirement of the law, nor is it alleged that he threatened or was about so to do. The petition asked for the opening of a road sixty feet wide, and finally, after the viewers’ report was brought in and considered, the commissioners ordered the supervisor to give the notice required by law, and to open said road. There is no force in the objection that the proceedings did not specifically require that the road be sixty feet wide, inasmuch as the law fixed that width for this road, where the proceedings were silent on that point.
It is further objected that the board of Commissioners did not, in its proceedings, make findings of certain facts in detail, namely, that the petitioners for said road were citizens of the United States or of Gallatin county, or that they lived in the vicinity of said proposed road, or that the road would be a public convenience or of public utility, or set forth the names of the parties whose property would be affected by the opening of such road. It is not affirmed that any required fact was wanting in the respects just enumerated, but the criticism is that these facts were not recorded in detail in the proceedings of the board of commissioners. We find no statute requiring that the petitioners for the opening of a road must be citizens of the United States or the county, nor is there any citation of law to that effect. But the petitioners, in their petition for said road, represented themselves as citizens of the United States, “ householders of the county of Gallatin, in the state of Montana, and that they reside in the vicinity” of said proposed road. How was this plaintiff injured by the lack of repording
It is further alleged that “the viewers did not cause a survey and plat of the proposed road to be made by the county surveyor, or other competent person, as required by law.” This allegation is contradicted by another part of the complaint; for in the exhibit of the report of the road viewers, which plaintiff attaches as part of his complaint, a survey aud plat are referred to as follows: “The plat of said road, survey, and report of the surveyor is hereto attached, and made part of this report.” Also the resolution of said board of county commissioners requiring said road to be opened, and awarding the estimated damages to plaintiff, contains a reference to the survey and plat of said road, as follows: That on the seventh day of June, 1893, the board of county commissioners proceeded to consider the report of the road viewers, and all objections thereto, “and that it then and there determined to open said road as a county road, and accordingly caused the full and final report of the viewers aforesaid, and plat thereof, to be recorded in the office of the county clerk of said county, in the book kept for that purpose.” It is not alleged that no survey and plat of said road accompanied these proceedings, as mentioned. The allegation of plaintiff is that the viewers did not cause a survey and plat to be made “ as required by law.” This is pleading a conclusion of law, for it is not specified wherein the survey and plat, mentioned in the exhibits to the complaint as having been made, failed to conform with the provisions of law, nor is any such detect pointed out in the aigu
Rehearing
ON REHEARING.
Appellant’s motion for rehearing, filed herein, is largely a repetition of the former treatment of the case, as presented by the briefs in the original hearing. The province of a petition for rehearing is to call attention to controlling facts or authorities which were overlooked, or not given their proper force and effect, in the determination of the case. The only new matter appearing in this motion for rehearing are some bitter complaints against section 1821 (Comp. Stats., div. 5) of the road law, as being incompatible with American ideas of justice, and repugnant to those rights vouchsafed by our constitution, in that said section provides that, if the owner of land over which a road is laid out by order of the proper public agents feels dissatisfied with the damages awarded him by the viewers and county commissioners he must petition the board of county commissioners for a “ way” to ascertain the compensation to which he is entitled by reason of the damage suffered in the premises. This is a misinterpretation of that section. By a reference to the original act on file in the office of the secretary of state it is found that the word “way,” as printed in said section, is “jury.” The contest of that section also shows that undoubtedly the word “jury,” in place of the word “way,” was the intention of the framers of the road law. The insertion of the word “jury” in place of the word “way,” as printed in section 1821 of the road law, would remove the discomforture so bitterly complained of by appellant in this respect. Moreover, if he was dissatisfied with the damage awarded (which appears to have been the case, as shown by his brief originally filed), be was not limited to the jury mentioned in section 1821, to ascertain the damage. By provisions of the same act he is given the right of appeal to the district court to ascertain and recover the damage suffered, but such remedy appears to have been neglected. Motion for rehearing ought to be overruled.