State ex rel. Sims v. County Commissioners

6 Neb. 129 | Neb. | 1877

Maxwell, J.

A highway may be created by legislative authority, exercised through a municipal corporation authorized by law to open streets, or through the general road law, or by dedication. A dedication is defined to be the act of devoting or giving property for some proper object, in snch manner as to conclude the owner. It may be made by parol, and may be presumed from lapse of time.

Section nineteen of the general road law provides that: “"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 publie 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.”

Section twenty provides that: “Upon the presentation of a petition signed by at least ten land holders, residents of the county, after notice gimen as provided in the precedi/ng section, the board of county commissioners shall proceed to hear the parties interested in the case,” etc. In the case at bar the records fail to show when, or where the notices were posted. But it does appear that two of the notices were signed by but one person. The statute requires those who are about to apply to the county commissioners for the opening of a new road, or the discontinuance or change of a road heretofore established, to give notice. This provision of the statute requires the notices to be signed by at least ten land holders and residents, and the same land holders and residents who sign the notices must sign and present the petition to the county commissioners. Proof of posting the notices should be made by affidavits of the party posting the same, stating when, where, and by whom the notices were posted. In Robinson v. Mathwick, 5 Neb., 255, this court held that 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. It is also held that, “it is essential that all the facts necessary under the statute to authorize their action in any given case be affirmatively shown.” No notice having been given in the manner provided by law, the county commissioners had no jurisdiction of the case. The writ must therefore be denied.

Writ denied.