27 Kan. 659 | Kan. | 1882
The opinion of the court was delivered by
Plaintiff in error petitioned the county board of Chase county to establish a road. Certain proceedings
“Sec. 29. That whenever the premises of any person in this state shall be so completely surrounded by adjoining lands, the property of other persons, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie, for a road through some portion of the adjoining lands; and the board shall, on the presentation of such petition, proceed in accordance with the provisions of the foregoing sections to lay out such road, make returns of plats, and allow damages, if any should be held or allowed, provided said road shall. not exceed twenty-five feet in width, and be laid out upon the section or half-section lines when practicable.”
“Sec. 38. That when any land-holder, who has no road or highway, desires the benefit of a road or highway, such person may petition the county commissioners of the county in which
The objection made to § 38 (and §§ 39 and 40 simply depend upon § 38 for validity) is, that it attempts to condemn property for private use; see the case of Bankhead v. Brown, 25 Iowa, 544, and cases cited therein. Now we remark in the first place, that obviously the road proceedings were had under § 38, and were when challenged by proceedings in error insufficient under § 29. It will be noticed that neither section quoted prescribes the details of the proceedings; they are either within the control of the commissioners, or left to the prior provisions of the chapter, and § 29 expressly refers to such prior provisions. Turning to such prior provisions, we find that they prescribe a bond, the publication of notice, appointment of viewers, report of viewers, and a final order of the board establishing the road. Now the road notice in this case in terms names a proceeding under § 38. The bond is conditioned to pay all costs and expenses whether the prayer of the petition is or is not granted, while the ordinary bond is only conditioned to pay in case the road is not established. (Sec. 1.) The first order of the board, that for the appointment of viewers, is entitled “In the matter of private road,” and recites a petition for the location of a private road, the filing of a bond for the payment of all costs and expenses, and orders to be entered on the journal the road notice which was afterward published, and which specially refers to said § 38. The report of the viewers was not that the road is of public utility, but it specially finds that the road is “necessary for N. Loekerman only, and not of use to the public,” and the order of the commissioners based upon that report, after reciting the opinion of the “viewers to be in favor of the establishing said road, but as
“If said report is favorable, and no legal objection appear against said report, and they are satisfied that such road will be of public utility, they shall order,” etc.
Now the commissioners have never found that the road was of public utility; on the contrary, their simple finding is, that the road should be established as a private road. It would seem to follow from this, that if all the proceedings were
The judgment of the district court will therefore be affirmed.