Kœnig v. County of Winona

10 Minn. 238 | Minn. | 1865

By the Court —

McMillan, J.

— The act under which the proceedings to lay out the road in this case originated, does not by its terms allow an appeal from the assessment of damages by the commissioners, or from their decision locating the road. If, therefore, the right of appeal exists, it must be given by some other statutory provision. The only provision upon which the appellant relies to sustain the appeal is sec. 17, chap. 7, of the Comp. Stat., amended 1862, Sess. Laws 1862, p. 84.

While the statute under which the proceedings in this case were had, permits a party to present to the board of commissioners a claim for damages, it will be observed that no claim legally exists against the county until the final determination of the board to locate the road. Sess. Laws 1862, chap. 68, sec. 6. For if after the assessment of damages the board should determine that the road was not of sufficient advantage to the county to warrant the paying of the damages assessed, and dismiss the petition, no injury would result to the claimant and no liability exist on the part of the county. The assessment of damages itself does not create a claim against the county; it is the location of the road only that gives validity to any claim for damages. We think it is not such a claim as is embraced in the section allowing an appeal. But it was evidently the intention of the law that no appeal should be allowed from the assessment of damages by the' board of commissioners. By the terms of the act the commissioners are to determine whether the damages are greater than the public utility of the road. It will be perceived that the judgment of-the commissioners in locating a road is based expressly upon the amount of damages as assessed by them. Any alteration, therefore, of the amount of damages would seriously affect their judgment in laying out the road, and might entirely change their determination. Yet if an appeal may be allowed from the assessment, the damages may be increased indefinitely and still the determination to locate the road remain unchanged, for it is not supposed that the appeal lies from or affects the determination of the board locating the road. A construction of the law which would lead to such results would not .be reasonable.

We think the appeal was properly dismissed. The order is affirmed.