293 N.W. 574 | Iowa | 1940
On February 15, 1939, the board of supervisors of Washington county passed a resolution authorizing the *854 county auditor to appoint a commissioner as provided by section 4564 of the Code, and continued with proceedings to vacate a certain portion of the public highway which abuts the property of the appellants, and a commissioner was appointed. He reported, recommending vacation. Notice was given to appellants on March 20, 1939, such notice stating that all claims for damages must be filed in the auditor's office on or before noon of May 15, 1939. On April 19, 1939, appellants filed claim for damages. On August 2, 1939, the board of supervisors disallowed the claim. Appeal was taken to the district court. On October 6, 1939, appellee filed its motion to dismiss the appeal, and, on October 27, 1939, this motion to dismiss was sustained by the court. From this action of the court this appeal is taken.
Appellants claim that the court erred in holding that the board of supervisors did not have jurisdiction to act on appellants' claim and allow damages, and in holding that appellants have no right of appeal, appellants claiming that jurisdiction to act on appellants' claim and allow damages was conferred upon the board by the appellants appearing and filing their claim for damages pursuant to notice served upon them by the board, under chapter 237 of the Code.
The issues in this case are: (1) Does the board of supervisors have jurisdiction to allow damages for the vacation of a road where claim for damages was filed by an abutting landowner within the time prescribed by the notice given by the board of supervisors to said landowner requiring him to file objections and claim for damages; and (2) Do the appellants have right of appeal from the resolution of the board of supervisors disallowing claim for damages for vacation of road filed by such abutting landowner?
The questions presented involve the consideration of several sections of chapter 237 of the Code of 1935, and especially of sections 4580, 4585, 4586, and 4597, relating to the establishment, alteration, and vacation of highways, and to appeal. Appellee insists that neither claims for damages nor appeal from refusal of the board to allow such damages are *855 permissible under the statute. The general provision as to the power of the board of supervisors to "establish, vacate, and change" the secondary roads of the county is found in section 4560. This is followed by several sections providing the method by which such establishment, vacation, or alteration may be carried out, including the appointment of a commissioner and the fixing of a day when the petition and report shall be acted on (section 4573) "* * * on or before which day all objections to the establishment, alteration, or vacation of the road, and all claims for damages by reason of its establishment or alteration, must be filed in the auditor's office." Section 4576 prescribes the form of notice, which shall state that the commissioner has reported in favor of the establishment, vacation, or alteration, and directs that all objections thereto or claims for damages must be filed.
Section 4580 is as follows:
"If objections to the establishment of the road or claims for damages are filed, the further hearing of the application shall stand continued to the next session of the board of supervisors held after the commissioners appointed to assess the damages have reported. All claims for damages and objections to the establishment, alteration, or vacation of the road must be in writing, and the statements in the application for damages shall be considered denied in all subsequent proceedings."
Section 4581 provides that "Upon the expiration of the time for filing claims for damages, if any are filed, the auditor shall appoint three disinterested electors of the county as appraisers, to assess the amount of damages any claimants may sustain by reason of the establishment or alteration of such road, * * *," and provides for notice to the appraisers and their meeting and performance of their duty. They shall then report and the action which the board may take is set out in sections 4585 and 4586:
"4585. * * * When the time for final action arrives, the board may hear testimony, receive petitions for and remonstrances *856 against the establishment, vacation, or alteration, as the case may be, of such road, and may establish, vacate, or alter, or refuse to do so, as in their judgment, founded on the testimony, the public good may require.
"4586. * * * Said board may increase or diminish the damages allowed by the appraisers, and may make such establishment, vacation, or alteration conditioned upon the payment, in whole or in part, of the damages awarded, or expenses in relation thereto. All damages for such establishment, vacation or alteration which must be paid by the county shall be payable from the secondary road construction fund."
Originally these two sections (excepting the last sentence) constituted but one section, being 1501 of the Code of 1897, and 946 of the Code of 1873, but now, as editorially divided, are the two sections above quoted. It may be of value to note some of the changes in procedure relating to roads from the early settlement of the state. The Code of 1851 contained little provision for the vacation of a highway. Section 516, relating to county roads, merely stated that such roads might be altered or discontinued by pursuing substantially the same steps prescribed for opening a new road, and in another section provision was made for the refund of money advanced or damages paid in the event of discontinuance. The county court was given general power of supervision and the power to establish and "change" the roads as provided in the Code. The general procedure for establishment in that and subsequent Codes was similar. The same provisions occur in the Revision of 1860. The Code of 1873, as to general power of the board of supervisors, was the same, but for the first time the word "vacate" is used, in section 922, which gave a form of petition, and in section 923, providing for bond and form of notice. The general supervisory power given in section 1482 of the Code of 1897 invested the board "with power to establish, vacate and change" the roads, and this language is carried through subsequent Codes. The right of appeal was given in the Code of 1873, in section 959, authorizing an appeal by any claimant *857 for damages claimed to be caused by the establishment of a highway. The subsequent addition of the words "or alteration" occurs in the Code of 1897 (in section 1513) as it now appears in the Codes of 1935 and 1939, section 4597.
This court in its interpretation of these various provisions regarding vacation of roads has not always been consistent in its holdings. In the case of Brady v. Shinkle (1875),
The case of Grove v. Allen,
McKinney v. Baker,
Notwithstanding the holding of the court in the McCann case, later, in Heery v. Roberts (1919),
[1] The claim for damages in the case at bar, filed with the board, brings it within the rule announced in the above case of Heery v. Roberts. Claimants own land in the quarter section east of and abutting upon the road proposed to be vacated. Their claim states that Williams Creek, which cuts such road, cannot be crossed with farm implements or vehicles except over the bridge on said road, and access to their land south of the creek will be prevented, except by a long detour or heavy expense. It is apparent that the allegations of their claim state damages peculiar to themselves and not to the general public.
The statute provides for filing claims for damages. The sections of the Code heretofore referred to indicate that the board may increase or diminish damages allowed by appraisers. It seems apparent that the statute throughout rests in the board full authority and jurisdiction to determine the amount and allowance thereof, and that claims of the nature of the one here considered may be allowed. Yonota v. Modrachek,
[3] In any event, we feel that under the rule of construction directed by section 64 of the Code, the intent of the legislature, as evidenced by construing the various sections in connection with all the provisions of the chapter, was to apply the same rule of procedure throughout. And this seems to us reasonable. Our opinion therefore is that the order of the court should be and it is reversed and the cause remanded. — Reversed and remanded.
RICHARDS, C.J., and MITCHELL, STIGER, HAMILTON, SAGER, BLISS, OLIVER, and MILLER, JJ., concur.