Higgins v. Curtis

39 Kan. 283 | Kan. | 1888

Opinion by

Cjlogston, C.:

The contention now is, that the county commissioners lost jurisdiction on the 5th' day of July, when they rejected the report of the viewers, and that no further action could be taken by them until after notice was given to all the parties interested, and that their action on the 6th of July in reconsidering their rejection of the report on the 5th was without jurisdiction, and that all subsequent proceedings had on the 23d of July, when the report was confirmed and the road ordered open, were void. The county commissioners have the power to “ establish rules and regulations to govern the transaction of their business.” (Comp. Laws of 1885, ch. 25, §25.) In the absence of any showing as to what the rules were, we must presume that the action of the board was in conformity therewith, and that under said rules .the board might properly reconsider its action had at a former session, and that when so reconsidered it would stand as if no action had ever been taken thereon. If this be true, then the board could continue the matter to any other day of the same session, or to any future session of the board, and no notice to any person would be necessary. If, however, it was once shown that the plaintiff was present on the 5th of July to present his claim for damages to the board, and while so present the board rejected the report of the viewers, then before the board could take final action on the report of the viewers, and on plaintiff’s claim for damages, notice must be given him so that he might have an opportunity to present it to the board. This, however, would not prevent the board from in the meantime confirming the report of the viewers, and establishing the road and ordering it to be opened. Plaintiff would still have the right to present his claim for damages, and no matter what the action of the board might be upon that claim, it could not affect the opening of the road in any manner; and if the board, as it appears from the findings of the court, took no action on the plaintiff’s claim for damages, then his claim is still pending before the board, and may be presented by him at his pleasure.

The findings of the court show that at the time the action of the board was taken rejecting the report of the viewers, the plaintiff had made no appearance, either at that time or at any subsequent period in the history of this road; in fact, that he paid no attention either to the report of the viewers, the location of the road, or his claim for damages, after once having presented it to the viewers. This being true, then it was not material; for as he had no notice of the action of the board on the 5th, no notice was necessary to be given of its action on the 6th. He had the right, if he desired, to appear before the board and show cause why the report should not be confirmed; but- be was entitled to no greater notice than that given to the public generally. He knew that the report of the viewers would be made, and it was his duty, if he desired to appear before the board, to ascertain by its rules or from, such other information as from inquiry of the board he might have gained, when the report would be taken up; and if he failed to do this, he cannot afterward complain that action was taken in his absence. Most of the questions here raised have been passed upon by this court in Masters v. McHolland, 12 Kas. 23.

It is recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.