88 P. 433 | Idaho | 1907
This is an appeal from the judgment of the district court of Latah county. In October, 1905, Joseph Kambitch presented to the board of county commissioners of Latah county his petition for a private road. The petition was signed by himself alone. The petition says: “The necessity for and advantage of the establishing of said road are as follows: That your petitioner, Joseph Kambitch, owns two hundred and forty acres in section 2 in said township, and resides there, with his family, long prior hereto;
A bond was filed and viewers appointed, who reported to the county commissioners, recommending that the road be granted as prayed for. A hearing was had and an order made by the county commissioners approving the report of the viewers and awarding damages. The order is as follows: “In the matter of the petition of Joseph Kambitch for a private road in road district No. 4, it is ordered that viewers’ report therein be approved and damages are hereby awarded as follows: To J. N. Hasfurther, the sum of $250.00. To Martin Hasfurther, the sum of $300.00.” The Hasfurthers appealed from the order of the commissioners granting the said Joseph Kambitch the road through their respective premises as prayed for in his petition and awarding them the sum set out in the order. The appeal is from the order and the whole thereof.
In the district court the prosecuting attorney for Latah county moved to dismiss the appeal: “1. That an appeal will not lie at this time, as the order of the board of county commissioners does not in any manner affect the property or the rights of either Martin Hasfurther or J. N. Hasfurther. in that the said order appealed from does not create or establish a public highway; 2. That the said order appealed from
Counsel for appellant assign six errors: First, the order of the court in reversing and annulling the action of the board of county commissioners; second, in holding that more than one signature is necessary for a petition for a private road; third, in holding that the order appealed from granted or
Some questions raised in this appeal are new in this state, hence we have felt justified in giving a complete history of each step taken from the time the petition was filed down to the final order of the district court. The petition was not filed under the provisions of section 920 of the Revised Statutes, which provide that any ten inhabitants of a road district, taxable therein, may petition for the alteration or to discontinue any road or to lay out a new road. It - would seem that the petition must have been filed under the provisions of section 933 of the Revised Statutes of 1887, which provide: “Private or by-roads may be opened for the convenience of one or more residents of any road district in the same manner as public roads are opened, whenever the board of commissioners may for like cause order the same to be viewed and opened, the person for whose benefit the same is required paying the damage awarded to land owners, and keeping the same in repair.” It should not be difficult for a court to construe the above sections as we view them. By the terms of
We next come to what we consider the most important question to be considered in this appeal. Counsel for appellant say: “It is -further submitted that the said Martin Hasfurther and Joseph Hasfurther having appeared in person and with counsel before the board of county commissioners and contested the laying out of said road, introducing witnesses, thereby waiving any and all objections to the jurisdiction of said board, and waived any and all irregularities which appeared in laying out and establishing said road prior to the date of said hearing. It is further .submitted that at no time during any of the proceedings in said-road case was any objection made to the board of county •commissioners by Martin Hasfurther, Joseph Hasfurther or their attorney, Stewart S. Denning, as to any irregularity
Counsel for respondents insists that they had a right to appeal from the order of the board granting the road through their premises and the award for damages, and that when the case came to a hearing in the district court, they were entitled to a trial de novo. In support of this contention-he cites Session Laws of 1899, pages 248, 249. The language of the law referred to is as follows: “Upon the appeal, the matter must be heard anew, and the act, order or proceeding so appealed from may be affirmed, reversed or modified.” We are disposed to accept his theory as correct. The Has-furthers had either of the remedies they saw fit to pursue— that is, by appeal from the order of the county commissioners or refuse to accept the award and thus compel condemnation proceedings by the county. They chose the former remedy, hence must accept the law with reference to appeals. Counsel for respondents also urges that the appeal to this court should be dismissed for the reason that it was not taken within five days after the decision of the trial court, and cites Session Laws of 1899, page 249. At a later date of the same session (1899), at page 273, the title of the act is “Regulating Appeals from the District Court to. the Supreme Court.” Section 4 of the act provides as. follows.: “From a judgment rendered as an appeal from an order, de
We are in accord with counsel for respondents in his contention that when the ease was appealed to the district court from the order of the board of county commissioners appointing viewers and fixing the award for damages to each of the appellants there, respondents here, that the case was there for review of all the acts, orders and proceedings had in that tribunal. In Canyon Co. v. Toole, 9 Idaho, 561, 75 Pac. 609. we think this question is settled; also Great Northern Ry. Co. v. Kootenai County, 10 Idaho, 379, 78 Pac. 1078. It is shown by the record in this ease that J. W. Kirkwood was the county surveyor of Latah county, and that A. S. Lyon, R. S. Mathews and J. W. Kirkwood were by the board of commissioners appointed the viewers to view and survey the road; that after such appointment R. S. Mathews and A. S. Lyon took the road viewers’ oath, which was administered to them by J. W. Kirkwood as county surveyor. It nowhere appears in the record that Mr. Kirkwood ever took the road viewers’ oath prescribed by the statute before entering upon the discharge of his duties. Section 923 of the Revised Statutes of 1887 provides: “Upon filing such petition and bond the board of county commissioners must appoint three viewers, one of whom must be a surveyor, to view and survey any proposed alterations of an old or opening of a new road, to be made in accordance with the description in the petition, and submit, to the board an estimate of the cost of the change, alteration or opening including the purchase of the right of way and their views of the necessity thereof. ’ ’ Section 924 provides: "The road viewers must be disinterested citizens of the