71 Iowa 438 | Iowa | 1887
I. The petition presented to the board of supervisors asked that one road be established, and another vacated. It appears that the new road to be established was to take the place of the old one asked tó be vacated. At least, plaintiff so regarded it. Plaintiff, it appears, was one
II. In our opinion, the circuit court, upon these showings, rightly overruled defendant’s motion to dismiss the appeal, and correctly sustained plaintiff’s motion to allow him to amend his claim for damages. It must be remembered that the appeal brought up nothing for determination except plaintiff’s claim for damages. The action of the supervisors in establishing one road, and in refusing to vacate the other, could not be reversed upon the appeal. Code, § 962, provides that, upon the appeal, “the amount of damages the claimant is entitled to shall be ascertained by said circuit court in the same manner as in actions by ordinary proceedings.” Of course, the damages in this case must be ascertained upon the appeal, in view of the rights of the parties, as settled by the action of the supervisors. When they allowed him damages to the amount of $100, the question as to the vacation of the old road had not been acted upon. Plaintiff, therefore, in view of the arrangement to vacate the old road, was authorized to believe that the arrangement would be carried out. He was, therefore, not required to object to the allowance for damage made to him. By refusing to vacate the old road, the matter was wholly changed, and plaintiff’s rights were changed to correspond with this action. When the case came up on the appeal, his rights stood as they were left by the action of the supervisors. In the circuit court his damages were to be determined according to his rights as they were left by the final action of the supervisors. They are to be determined, not by the plead
These views, which we think cannot be disputed, applied to the peculiar facts of the case, lead us to the conclusion that plaintiff could prosecute his appeal, and that the law authorized him to file an amended claim in accord with his rights. "We must not be understood as holding that in ordinary cases, wherein there is absence of facts of the character found in this, the claim for damages could not be increased upon the appeal. The circuit court, therefore, rightly overruled defendant’s motion to dismiss the appeal, and rightly sustained plaintiff’s motion to amend his claim for damages.
Affirmed.