91 Neb. 111 | Neb. | 1912
Plaintiff brought suit in the district court for Custer county, to restrain the board of supervisors and other
The petition shows that a petition for the laying out of the road in controversy was filed April 19, 1909; that the proposed road runs through the land of plaintiff; that after such petition had been filed plaintiff procured and filed a remonstrance against the establishment of the road, signed by 200 electors of the county; that, when the matter came on regularly to be heard by the board, the remonstrance was overruled; that the board and the county clerk are about to direct the surveyor to go upon his land, to survey the same; that the board made an order allowing plaintiff certain damages, but directed that the same' be paid by road district No. 4 of Custer county, through which it is proposed to run the road, and refused to allow such damages against the county. The petition contains certain other allegations which we deem it unnecessary to recite.
The stipulation of facts shows that the petition for the road was filed April 19, 1909; that personal notice was given to the owners of the various tracts of land, including plaintiff; that on June 25, 1909, the remonstrance, hereinbefore referred to, Avas filed; that on the 11th day of August, 1909, the board met in regular session, all members being present, and the parties interested in the road controversy were also present; that testimony was submitted for and against the establishment of the road; after which the committee made the following report: “We, your committee, recommend that the petition be granted as recommended by the commissioners, and the remonstrance be rejected and damages allowed against road district No. 2 Kilfoil township as follows: * * * Joseph Sittler for land, 6.04 acres, $302; for fences, $108;” that the report of the committee was accepted and adopted as read and the road established as recommended by the committee. It is further stipulated that it is the inten
It is contended by the defendants that, by failing to appeal or prosecute error proceedings from the action of the county board in laying out the road, and by filing with the board his claim for damages, he waived the right to question the regularity in any of the proceedings by the board. As to everything done by the board, except the allowance of the damages against the road district instead of providing for their payment by warrants on the
The second point urged by plaintiff, that no provision was made for the payment of plaintiff’s damages, stands upon a different footing. Giving the waiver the full force claimed for it by defendants, it simply sustains the regularity of all the proceedings of the board in laying out the road; so that, up to that point, the case stands as¡ if no remonstrance or objections of any kind had been filed. In such a case, the county has a right to take the land for the proposed road, but not until it has made provision for the payment of the damages. In Zimmerman v. County of Kearney, 33 Neb. 620, we held: “Before a county can appropriate lands to public use for a public road it must provide for the payment of damages for the right of Avay either by the appropriation of money from the proper fund for that purpose, or the levy of sufficient taxes to pay the damages upon which a warrant may be drawn. In either case the compensation must be sure, and the landowner may enjoin the use of his property by the public until such compensation is made.” In the opinion it is
The'judgment of the district court is therefore reversed and the cause remanded, with directions to grant an injunction restraining the defendants from entering upon or in any manner attempting to appropriate plaintiff’s land until it has made due provision for the -payment of the damages allowed in its order of August 11, 1909.
Reversed.