Shearer v. Comm'rs of Douglas County

13 Kan. 145 | Kan. | 1874

The opinion of the court was delivered by

Brewer, J.:

This action in the district court was an appeal from the decision of the commissioners of Douglas county, refusing to grant to the plaintiff any damages on account of .the laying out and opening of a road through his farm. The facts are as follows: The proceedings were all regularly had. The plaintiff was a resident of the county, and was duly notified of the time and place of the meeting of the viewers as required by § 4 of the road act. An agreed statement of facts shows that — “On the morning of the day appointed, the plaintiff, who lived about five miles from ■where the viewers were to meet, prepared his claim for damages, had his horse saddled and at the door to carry him to the place of meeting of the viewers in time to have met the viewers and present his said claim, and intended so to do; that his mother, a resident of his family, was taken suddenly and dangerously ill with a congestive chill, which in a few days terminated in death; that plaintiff was called upon and stopped from meeting with said viewers to be with his mother in her illness, was with her at her bedside attending upon her, and that had it not been for his mother’s illness, as stated, he would have presented his claim for damages to the said viewers, and said viewers would have allowed plaintiff his damages, and reported favorably on laying out said road; that plaintiff appeared before the defendants, before they had acted on the report of the said viewers, and presented his claim for damages in writing, and made known to them the above facts,” etc. We have made this lengthy statement from the admitted statement of facts, that the case may be clearly pre-: sented. It is not questioned by counsel for plaintiff but that defendants were entitled to judgment unless the circumstances as detailed above were sufficient to waive the requirements of § 5 of the road act respecting the presentation by the owner to the viewers of a written claim for damages to his land by reason of the road. The section declares that “all applications for damages shall be barred unless they are presented as provided in this act.” (Gen. Stat., 899, § 5.) The application was not presented as provided, and hence by the plain language of the statute was barred. No exception is named in the statute. No authority is given to the courts to declare one. And while it cannot be denied that the facts of this case present a strong appeal, show a case indeed which of right there should be' an exception, still we do not feel authorized to interpolate into the statute a proviso or exception which the legislature has seen fit to omit. The power to take private property for public uses, is clear. The power to name the tribunal to award compensation for the property taken, and to prescribe the manner in which claims therefor shall be made, is equally clear. And if the manner prescribed is free from any unreasonable requirements, it seems to us also clear that the legislature may provide that a failure to make the claim for compensation in such manner, shall be deemed an absolute waiver thereof, and that having made such provision the waiver is not in any given instance avoided by proof that the claimant failed to pursue the prescribed remedy in obedience to the dictates of friendship, or the obligations of filial or social duty. We do not think the case of Rechner v. Warner, 22 Ohio St., 271, conflicts with the views herein expressed. Regretting that our views of the law do not enable us to give to the plaintiff the relief he asks, we are constrained to order an affirmance of the judgment.

All the Justices concurring.