61 Neb. 612 | Neb. | 1901
Louis Lesieur, the plaintiff in error, appealed from an adverse decision of the county board of Custer county upon a claim for damages filed under the provisions of the road law. In his petition in the district court he alleged that he was the owner of a quarter section of land in Custer county; that a petition had been filed in the office of the county clerk of said county signed by J. T. Ripley, W. W. Thompson, A. N. Copsey,- “and others, praying for the location of a public highway across the premises of this plaintiff,” and that the board of supervisors “acted upon said petition and located said highway.” It was also alleged in the petition that the plaintiff sustained damages to the amount of $200 by reason of the location of said road. The answer of the county was in substance a general denial. A jury impaneled to try the cause found, in obedience to a peremptory instruction, that the plaintiff had no cause of action, and judgment was thereupon rendered in favor of the defendant. We are of opinion that the trial court reached a right conclusion and that its decision should be affirmed.
The county having denied the existence of a road across the premises described in the petition, the burden was on the plaintiff to show that his land had been regularly condemned, or at least that it had been physically appropriated to the use of the public by the action of the county authorities. There is nothing whatever in the record from which it may be legitimately inferred that the petition contemplated by section 4 of the act on the subject of roads (Compiled Statutes, 1899, ch. 78) was ever filed in the office of the county clerk, or that the notice mentioned in section 18 of the same act was ever given. That the filing of a petition in accordance with section 4, and the giving of notice in compliance with
There is another reason why the instruction complained of was properly given. There is no competent evidence that plaintiff was the owner of the land for which he claims damages. He was not in possession, and the only proof of ownership offered was a deed from a man named James A. Yandeventer. This was, of course, no evidence of title.
The judgment is
Affirmed.