32 Kan. 507 | Kan. | 1884
The opinion of the court was delivered by
This was an action brought by the plaintiff on January 21, 1884, to enjoin the board of county com
The petition alleged that the board “threatens at its next meeting to vacate the road as recommended by the viewers ; . . . and that the board threatens to and will at its next meeting make and spread an order upon the records of the office of the county clerk of said county vacating the road.” It was also alleged in the petition “that prior to July 23, 1883 — the day of the meeting of the viewers — the county clerk gave no notice by advertisement set up in his office, nor in Wolf Eiver township, in which the road to be vacated lies, of the presentation of the petition to the board, or the substance thereof.” Therefore it is claimed that the board of county commissioners had no jurisdiction to vacate the road in question, because of the failure to give the notice required by law. On January 28, 1884, a temporary injunction was allowed by the probate judge of Doniphan county, restraining the board from vacating any part of the road. On March 28, 1884, the defendants demurred to the petition upon the ground, among others, that it did not state facts sufficient to constitute a cause of action. Upon the hearing of the demurrer the court sustained the same. The plaintiff elected to stand upon his petition, and the court rendered judgment in favor of the defendants for all costs.
Section 1 of the act in relation to roads and highways reads:
“That applications for vacating any road shall be by petition to the board of county commissioners, signed by at least twelve householders of the county residing;] in the vicinity where said road is to be vacated.”
“Upon presentation of any petition for the vacation of any road to the county commissioners at any regular session of their board, it shall be the duty of said commissioners, if they find the petition to be a legal one, and that the proper bond has been filed, to appoint three disinterested householders of the county as viewers, and the county clerk shall give notice by advertisement set up in the county clerk’s office and in every municipal township through which any part of said road is designed to be vacated, for at least twenty days, and by publication for two consecutive weeks in a newspaper, if there be one published in the county, setting forth that such petition has been presented, giving the substance thereof; and that viewers will, on such day as the commissioners have designated, not more than twenty days after the expiration of the notice herein required, proceed to view said road, and give to all parties a hearing. They shall also cause a record of such 'notice to be entered on their journal by the county clerk.” (Comp. Laws of 1879, ch. 89, §3.)
We think the notice required to be given by said § 3 is so far jurisdictional, that when it is not given the commissioners have no authority to vacate a road. (Frizell v. Rogers, 82 Ill. 109.)
The cases of Comm’rs of Leavenworth County v. Espen, 12 Kas. 531, and Willis v. Sproule, 13 id. 257, are not applicable in all respects, because those decisions were rendered when the provisions of chapter 89, General Statutes of 1868, were in force. The present act relating to roads and highways took effect April 25, 1874, and repealed the prior statute relating to roads.
Notwithstanding the conclusion we have reached, we perceive no error in the ruling of the district court. The action was prematurely brought, and the court committed no error in sustaining the demurrer and rendering judgment. The notice is required to be given after the viewers are appointed. Since the appointment of the viewers, the county commissioners have taken no steps toward the vacation of the road. The report was filed on August 9, 1883, and this, action was not commenced for more than five months afterward. Up to the
The judgment of the district court will be affirmed.