88 Neb. 51 | Neb. | 1910
The controversy in this case is over a road on the half section line running north and south through section 26, township 15, range 13, in Douglas county. In 1876 the count} commissioners attempted to establish a public road at the point indicated. In 1893 plaintiff purchased 60 acres of land, 40 acres of which ivas on one side and 20 acres on the other side of this road. Shortly thereafter he fenced his land in such a way as to leave a roadway 30 feet in width. Thereafter his neighbors fenced their lands in a similar manner. Plaintiff also planted fruit trees upon his land up to his fences. He also planted evergreen and other trees along the line of the road indicated. In 1908 the defendant, who was the road supervisor of the district for that year, notified plaintiff to remove his fences and trees, stating that it Avas his intention as commissioner to improve a road 66 feet in width, and
Plaintiff contends that the proceedings to establish a public road along the half section line in controversy did not accomplish that result. The statute in force at that time provides: “Whenever the inhabitants in any county desire the opening of a new road, or the discontinuance or change of any road heretofore established, they shall give at least twenty days’ notice, by posting a notice on the court house door, and at three other public places in the vicinity of the road sought to be located, changed, or discontinued, setting forth the time when they will apply by petition to the board of county commissioners, giving a particular statement of the location, change, or discontinuance sought to be effected.” Rev. St. 1866, ch. 47, sec. 19.
Section 20 provides: “Upon the presentation of a petition, signed by at least ten landholders, residents of the county, after notice given as provided in the preceding section, the board of county commissioners shall proceed to hear the parties interested in the case.”
The notice of the application to the county commissioners for the location of the road contains nine signatures only, when the statute required ten. This was insufficient. The affidavit of posting the notices recites: “Henry Eicke, being duly sworn, says that four copies of the within notice Avere posted between the third and tenth days of January, 1876, as follows: One on the front door of the court house and three in the vicinity of the proposed road.” It will be seen at a glance that this proof of posting is clearly insufficient as to three of the notices posted. The affidavit says that he posted “three in the vicinity of the proposed road.” Where? On a back fence, where no one would ever see them? Were they all posted side by
In Lesieur v. Custer County, 61 Neb. 612, State v. Otoe County, and Doody v. Vaughn, supra, and Robinson v. Mathwick, 5 Neb. 252, cited by counsel for plaintiff, are approved. The latter case is quoted from as follows: “The board of county commissioners is a tribunal possessed of but a very limited jurisdiction, which is clearly defined by the statutes; and it is essential that all the facts necessary under the statute to authorize their action in any given case be affirmatively shown. In the location of a county road, the commissioners have no jurisdiction, unless the petition mentioned above be presented after due notice thereof has been given. If they presume to act without an observance of these plain statutory requirements, it would be without authority; and whatever they might do would be merely void.” We therefore hold that no road was ever legally established by the county at the point in controversy.
But this is not all. There is no evidence in the record to show that the county ever made any attempt to open the road which it had assumed to locate. It was left as
The judgment of the district court was clearly right, and it is
Affirmed.