McKinney v. Baker

| Iowa | Dec 12, 1896

Kinne, J.

1 I. Code, section 986, provides that

“ within twenty days after the day is fixed by the auditor, as above provided, a notice shall be served on each owner or occupier of land lying in the proposed highway, or abutting thereon, as shown by the transfer books in the auditor’s office, who resides in the county, * * * and such notice shall be published for four weeks in some newspaper printed in the county.” The statute requires the notice to be personally served upon the owner, as shown by the transfer book, when he resides in the county; if he be a non-resident, upon the occupier of the land, if there be one residing within the county. Alcott v. Acheson, 49 Iowa, 570. The petition demurred to does not show that plaintiffs’ ownership appeared upon the transfer book, nor that they resided in Keokuk county. Nor is it alleged that there was any occupier of the land they claim to own, or if there was such occupier, that he was a resident of this state. Hence, no personal notice was necessary as to plaintiffs, or as to the occupier of their land, if there was one. The same is true as to the claimed owners or occupiers of other lands abutting upon the highway. Their ownership is not shown to appear upon the transfer books, nor is it made to appear that they resided within the county. And as to the occupant of said land, if any, it is not averred that he resided within the county or state. State v. Chicago, Burlington & Quincy Railway Co., 68 Iowa, 135" court="Iowa" date_filed="1885-12-18" href="https://app.midpage.ai/document/state-ex-rel-patrick-v-chicago-burlington--quincy-ry-co-7101910?utm_source=webapp" opinion_id="7101910">68 Iowa, 135 (26 N. W. Rep. 37). The published notice was in proper form, except it did not contain the names of the owners of the land. As, however, it is not shown that any of the names of such land-owners appeared in the transfer books, it cannot be said that the notice was defective.

2 II. It is claimed that the proceedings of the board of supervisors are void, because the appraisers were not appointed on the day set for filing claims, but on another day. If this was a case wherein damages might be allowed, this contention would demand consideration. As it is well settled that no damages are allowable for vacating a highway, it is wholly immaterial when the appraisers were appointed. Grove v. Allen, 92 Iowa, 519" court="Iowa" date_filed="1894-12-13" href="https://app.midpage.ai/document/grove-v-allen-7106493?utm_source=webapp" opinion_id="7106493">92 Iowa, 519 (61 N. W. Rep. 175; Brady v. Shinkle, 40 Iowa, 576; Ellsworth v. Chickasaw County, 40 Iowa, 571" court="Iowa" date_filed="1875-06-15" href="https://app.midpage.ai/document/ellsworth-v-chickasaw-county-7096408?utm_source=webapp" opinion_id="7096408">40 Iowa, 571. We have treated the case upon the petition and demurrer, and upon the assumption that the demurrer was sustained. It does not, in fact, appear that the demurrer was ruled upon. The statute contemplates that the hearing and judgment of the court below should be upon the return to the writ, the facts as therein certified, and other testimony which may be introduced. Code, section 3222. By agreement entered into in the court below, the court was to take the returns into consideration in determining the demurrer. The judgment entered would indicate that the demurrer was overlooked, and the case disposed of on its merits. As, in any event, the demurrer should have been sustained, and neither the petition nor return warranted any relief to plaintiffs, the court did not err in its judgment. — Affirmed.