123 Iowa 137 | Iowa | 1904
In January, 1902, the defendant Roberts began proceedings before the board of supervisors of Van Burén county for the establishment of a public road under the provisions of chapter 1, title 8, of the Code. .-lie did not sign the petition therefor, but he was the only person directly interested in having the road established, and in fact prosecuted the proceeding before the board. The matter was contested, and thereafter it was ordered that the road be established upon the condition that the petitioner pay the costs and damages before the 1st of August, 1902. The defendant Roberts appealed from the award of damages, and the plaintiff, Kirkhart, filed in the district court a motion for the dismissal of his appeal, because he had not signed the petition for the road. The motion was sustained, and the appeal was dismissed, whereupon the defendant paid the costs of those proceedings, and afterward instituted proceedings under section 2028 arid 2029 of the Code for the condemnation of a way along the same line.
The appellant contends that a road was in fact established by the board of supervisors in the proceedings before it, anti, because thereof, that the defendant had no right to condemn a way. But with this contention we cannot agree. The establishment of the road was conditioned upon the payment of the expenses thereof, including the damages awarded the plaintiff herein; and when a road is thus established it does not become a legal highway, nor can the public acquire any right to the use thereof, until the conditions are complied with. State v. Glass, 42 Iowa, 56; McNichols v. Wilson, 42 Iowa, 385. It is argued, however, that because the defendant prosecuted the proceedings before the board of supervisors, and afterwards failed to comply’with the conditional order, he is estopped from having the road established by condemnation proceedings. The defendant was not bound by the award of damages made by the board of supervisors, nor could he have been so bound if he had in fact signed the petition, for the statute provides that an appeal may be taken
The judgment of the district court was right, and it is AEEIRMED.