34 Neb. 735 | Neb. | 1892
This is an action to recover for lands taken by the plaintiff under the power of eminent domain for the location of a public road. The facts are substantially as follows:
Section 18, chapter 78, Compiled Statutes, provides: " Notice shall be published for four weeks in some newspaper published in the county, if any such there be, or if there be no newspaper published in the county, then such notice shall be posted in at least three public places along the line of said proposed road, which notice may be in the following form :
"To all whom it may concern: The commissioner appointed to locate, vacate, or alter (as the case may be) a road commencing at-, in-' county, running thence (describe in general terms all the points as in the commissioner’s report) and terminating at-, has reported in favor of the establishment (vacation or alteration) thereof, and all objections thereto or claims for damages must be filed in the county clerk’s office on or before noon of the — day of- A. D. -, or such road will be established (vacated or altered) without reference thereto.
“A. B., County Clerk.
• “The publication or posting of such notice shall be sufficient notice to all persons owning land over which any road is proposed to be located.”
"Sec. 19. No objections or claims for damages shall be filed or made after noon of the day fixed for filing the same, and if no objections or claims for damages are filed on or before noon of the day fixed for filing the same, and the county clerk is satisfied the provisions of the preceding*739 section have been complied with, he shall report to the county board at their next session all the proceedings hereinbefore provided for.”
“ Sec. 20. 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 county board held after the commissioners appointed to assess damages have reported.”
“Sec. 21. When claims for damages are filed, and on the day appointed for filing the same, the county clerk must appoint three suitable and disinterested electors of the county as appraisers to view the ground on a day fixed by him, and report upon the amount of damages sustained by the claimants. Such report shall be made and filed in the* clerk’s office within thirty days after the day they are appointed.”
“Sec. 22. All claims for damages and objections to the establishment, vacation, or alteration of the road must be in writing, and the statements in the application for damages shall be considered denied in all the subsequent proceedings.”
“ Sec. 23. The clerk shall cause notice of their appointment to be given each of the appraisers, fixing the hour at which they are to meet at the office of the clerk or of some justice of the peace therein named.”
■ “ Sec. 24. If the appraisers are not all present within one hour of the time fixed, the clerk or justice, as the case may be, shall fill the vacancy by the appointment of others-The appraisers must be sworn to discharge their duty faithfully and impartially. Should the report not be filed in time, or should any other good cause for delay exist, the clerk may postpone the time for final action on the subject, and may, if expedient, appoint other commissioners.
“ Sec. 25. Should no damages be awarded the applicant therefor, the whole of the costs growing out of his application shall be paid by him.
*740 “ Sec. 26. At the next meeting of ttíe county board after the proceedings hereinbefore contemplated have been had the said board may hear testimony, consider petitions for and remonstrances against the establishment, vacation, or alteration, as the case may be, if such remonstrances be filed within the time provided in section 19, and may establish, vacate, or alter, or refuse to do so, as in their judgment founded on the testimony the public good may require. 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.
• “ Sec. 27. In the latter case a day shall be fixed for the performance of the condition, which must be before the next session of the board, and if the same is not performed by the day thus fixed, the board shall at such session make some final and unconditional order in the premises.
“ Sec. 28. Any order made or action taken in the establishment of a road shall be entered in the road record, distinguishing between those made or taken by the clerk and those by the county board."
That a public road may be lawfully located upon public notice given in this manner there is no doubt, and it will be binding upon all owners of real estate over which the same passes, whether they be under disability or not. As the general rule is that where the statute makes no exceptions the court can make none. The service by publication, however, is merely constructive. A public road may be located across a person’s land and he have no notice of it whatever until the time for filing claims for compensation or damages is past. The constitution, while it authorizes the exercise of the right of eminent domain, yet protects the land-owner by requiring just compensation to be made to him for property taken or damaged. But if the owner
Affirmed.