93 Neb. 805 | Neb. | 1913
This was an action to recover the cost of the construction of a bridge bnilt by the county of Scott’s Bluff over and across an irrigation ditch of the defendant. The defendant had judgment, and the county has appealed.
It appears that during the years 1906 and 1907 the defendant was the owner of the northeast quarter of section 7, and the northwest quarter of section 8, in township 22 north of range 54 west, in said county; that during said years it constructed its irrigation canal over and across the section line between sections 7 and 8 aforesaid, about 20 rods south of the north line of said sections; that on the 28th day of May, 1908, the board of commissioners of the plaintiff county, without proceeding as required by law, and without any procedure for the location and establishment of a public highwray, ordered a public road to
Tt appears that the title to the land in question was obtained by homestead entry under the laws of the United States after the year 1879. In the district court plaintiff contended that it was entitled to recover because the act of congress of 1866 (Rev. St. U. S. sec. 2477) granted all section lines for highway purposes; that the’legislature of this state accepted the provisions of said grant by the passage of the act of 1879 (laws 1879, p. 130, sec. 46) ; that, the title to the land on either side of said section line having been acquired since the passage of those acts, the defendant took the land subject to the right of a highway on said section line, and Avas required to build and maintain a bridge over and across its said canal. The •defendant contended that the plaintiff was a trespasser, and could not recoArer because it had failed to give notice as required by law, had failed to fix a time to file claims for damages, and because, defendant’s damages by reason of the establishment of said highway had never been paid, nor has payment been provided therefor.
There is thus presented for our determination the effect of the act of congress of 1866, and the legislative act of
On the other hand, defendant contends that by the language of the act of 1879 the right of the landowner to damages for opening section line roads in this state is ('specially reserved, and such has been the universal holding of this court. Scace v. Wayne County, 72 Neb. 162; Van Wanning v. Deeter, supra; Henry v. Ward, 49 Neb. 392; Howard v. Board of Supervisors, 54 Neb. 443; Barry v. Deloughrey, 47 Neb. 354.
In Beste v. Cedar County, 87 Neb. 689, it was said: “It is further argued by defendant, in substance: Before plaintiff leased the land taken for a highway, the state had dedicated it to the public for that purpose. Plain-
of the opening of any such road shall be appraised and allowed, as nearly as practicable, in manner hereinbefore provided.’ Laws 1879, p. 130, sec. 46; Comp. St. 1905, ch. 78, sec. 46. This statute dispenses with formal, preliminary proceedings in the opening of highways on section lines, but preserves the landowner’s right to compensation for property taken or injured. Scace v. Wayne County, 72 Neb. 162; Barry v. Deloughrey, 47 Neb. 354. If the legislature intended to donate a portion of the school lands to Counties for highway purposes, as argued by defendant, the legislative grant was limited by the proviso: ‘Any damages claimed by reason of the opening of any such road shall be appraised and allowed, as nearly as practicable, in manner hereinbefore provided.’ The enactments to which the proviso refers provide a method of compensating an owner for land taken or damaged for highway purposes. Comp. St. 1905, ch. 78, secs. 18-29. The word ‘owner’ as used in such statute applies to all persons having an interest in the estate taken or damaged.”
If the question were a new one in this state, it might be that we would hold differently, but it has been consistently held by this court that the right to damages for the dedicating of land for section line roads is given to the owner by the act above quoted, and we do not now see our way clear to hold otherwise.
The judgment of the district court is therefore
Affirmed.