79 P. 142 | Kan. | 1905
The opinion of the court was delivered by
Joseph S. Howard sued William Schmidt for the recovery of the possession of a tract of land described by metes and bounds, being in fact the west twenty-five feet of a quarter-section. The petition was- drawn in general terms under the statute, and the answer was a general denial. At the trial plaintiff introduced a series of conveyances covering the entire quarter-section, beginning with a patent from the United States and ending with a deed to himself. The defendant’s testimony disclosed that the real controversy was whether the strip of ground in question had become a highway, either by formal action of the county commissioners, or by prescription or dedication. At the conclusion of the evidence the court directed the jury to return a verdict for the defendant, and from the judgment which followed the plaintiff prosecutes error.
The defendant’s evidence included the public records of proceedings had with reference to the establishment of a road, and also testimony bearing upon the matters of adverse possession and acquiescence; but as plaintiff was not bound by the statements of defend
It is claimed by plaintiff that the records show that all the proceedings with reference to the establishment of a road were void because they were had under sections 6053 to 6055 of the General Statutes of 1901, which purport to authorize the opening of private roads, and which have been declared unconstitutional in Clark v. Mitchell County, 69 Kan. 542, 77 Pac. 284. The defendant, however, contends that while it is true that here and there in the record the proposed way referred to is described as a “private road,” yet every requirement essential to the laying out of a public road was met, and the proceedings therefore were effectual for that purpose under the general statutes.
The facts, as shown by the records, were as follow : The petition by which the proceedings in question were begun asked for the location of a “private road for William Schmidt,” but was signed not only by Schmidt, but by twelve householders residing in the vicinity, as the statute (Gen. Stat. 1901, § 6016) requires in the case of an application for a public road. The bond given bound Schmidt to pay all the costs and expenses of “viewing and locating of a road petitioned for by William Schmidt and others,” if the petition should be granted, while the statute just cited requires a bond insuring the payment by the petitioners of the costs and expenses in case a road be not established. A publication was made by the county clerk in conformity with the requirements of section 6018 of the General Statutes of 1901, the notice reciting that a petition had been presented asking the location of a “private road,” and stating where and
The question presented is whether the repeated designation of the proposed way as a “private road” is sufficient to defeat the jurisdiction of the county commissioners and nullify their final order establishing it as a public highway. While the petition, which is the basis for all subsequent action, uses the term “private road” to describe the thing asked for, the fact that it is signed by twelve petitioners, who are designated as householders residing in the vicinity, is some evidence of a public interest in the matter, and of an intention to invoke action under the statute relating to public roads, since neither the void act already referred to, which purports to authorize the establishment of a private road, nor section 6044 of the General Statutes of 1901, which provides for
The validity of the action of the commissioners is further challenged upon the ground that no personal notice was served upon the owner of the land, as required by section 6019 of the General Statutes of 1901. The record discloses that no such notice was given. This omission is fatal to the board’s jurisdiction, unless cured in some way. (The State v. Farry, 23 Kan. 731.) There is a recital in the report of the viewers that this landowner filed a claim for damages, and that an allowance was made to him as compensation for the land taken. The statute (Gen. Stat. 1901, § 6020) forbids any such allowance to be made unless upon the written application of the landowner, and also (§ 6022) requires all such applications to be returned with the viewers’ report. No application for
The judgment is reversed, and a new trial ordered.