| Iowa | Dec 6, 1884
Plaintiff was examined as a witness in his own behalf, and his testimony was the only evidence introduced on the trial. He testified in substance that after the appeals were taken, and while the causes wore pending in the circuit court, an agreement was entered into between him and defendant for the settlement of the causes and their final disposition; that his undertaking in the agreement was that he would make no further appearance in the causes, and would cease all efforts for procuring the final establishment of the highways, and that he would withdraw the money which he had deposited with the county auditor for the payment of the awards; and that defendant agreed, in consideration of his doing these things, to pay him $100, and to take care of the costs in the cases; and that he had paid out as attorney’s fees, and other expenses incurred by him in the proceeding to establish the highway, about the sum of $100; and that the object of the parties in entering into the agreement was to put an end to the proceeding, and to reimburse him for the expenses he had
The proceeding can be instituted, it is true, only on the petition of some member of the public who is interested in the question, and it may be carried on in his name, and he may be made responsible for the costs occasioned by it, and, if damages are awarded to those whose lands are appropriated for the use of the highway, he may be required to pay the same as a condition to its establishment, and, if an appeal be taken from such award, he may be made a party to the litigation thus instituted, and may ultimately be compelled to pay the costs occasioned by it. Code, Title VII, Chap., 1. But the proceeding is not for his benefit. It is a proceeding by the state for the benefit and advantage of all the people of the state, and the petitioner acquires no special rights or advantages by it. In so far as his efforts are instrumental in procuring the establishment of the highway, he acts for the public. In instituting and carrying on the proceeding, he acts, in a sense, in a public capacity. He invokes the power of the state, and it is exercised for the benefit of the common public, and he, in a sense, represents that public, and stands for it in the proceeding. It is true, he cannot be compelled to institute the proceeding, and it may be true, also, that, having voluntarily begun it, he cannot be compelled to continue it to a final result. If it turns out that the burthens likely to be imposed upon him are greater than was anticipated when he instituted the proceedings, it may be that he has the right to retire
We think the judgment of the circuit court is right, and it-is
Affirmed.