Vancleave v. Clark

| Iowa | Dec 15, 1873

Miller, J.

In July, 1871, a petition was presented to the board of supervisors of Monroe county, asking for a change in the Bloomfield 'and Winterset road. A commissioner was appointed, who reported in favor of the proposed change. The plaintiff made a claim for damages, and appraisers were appointed by the board, who appraised his damages at $25. Subsequently the board discovered an error in the commissioner’s report, and referred the matter back to him to make a review and survey of the proposed road, and report to the board at the October session, 1871.

At such session the commissioner reported, and the plaintiff claimed further damage caused by the fact that in the re-survey of the road additional land belonging to him was taken. The board appointed the same appraisers, who allowed the plaintiff $25.50 additional damages.”

The matter coming up for final hearing before the board at their January session, the board rejected plaintiffs claims for damages altogether, on the ground, as appears by their records, that the plaintiff -was not the owner of the land taken by the road. Prom this- decision of the board plaintiff appeals, specifying in his notice of appeal that he “ does not appeal from said assessment made by the jury, but is content to accept the amount thus assessed, to wit, $50.00, but does appeal from the decision of the board that he has no interest in the land entitling him to any damages.”

The cause coming up in the circuit court the defendants filed a motion to dismiss for the following reasons:

1. “ Plaintiff does not appeal from the decision and finding of said board upon the question of damages.

2. “ Plaintiff has no right or power by law to take a special appeal from the conclusions of said board upon which they base their ultimate decision upon questions of damages.

3. “ Plaintiff does not appeal from any question decided by the board, upon which they have not the right to make final adjudication.

4. “ Plaintiff does not appeal from the final decision of the board of supervisors upon the question of damages.”

The court sustained this motion and dismissed the appeal. This ruling is now assigned as error. It was erroneous. The appeal is taken from the decision of the board refusing t-o allow the plaintiff any damages. If by the decision plaintiff had been allowed only a part of his damages, there would have been no question as to his right to appeal therefrom. Spray & Barnes v. Thompson, 9 Iowa, 40 ; McCrory v. Griswold, 7 id. 248 ; Umbarger v. Bean, 15 id. 256 ; Prosser v. Wapello County, 18 id. 327; Warner v. Doran,, 30 id. 521. Can it be otherwise when the board have denied in toto the damages claimed ? Certainly not. By the decision of the board the plaintiff’s entire claim for damages is denied. Prom this decision the plaintiff appeals. He does not appeal from the verdict of the jury. Prom this he could not appeal, and whether, by the notice of appeal, the plaintiff could limit the matters to be tried on appeal or not, most clearly Ms attempt to do so did not authorize the court to dismiss the appeal altogether. The notice of appeal expressly states that the appeal is from the “ order and decision ” of the board by which his damages were denied him. The record it is true states the grounds of the decision to be that plaintiff did not own the land, but that it does so is no reason why an appeal from the decision should be dismissed.

The order of the circuit court dismissing the ajipeal will be

Reversed.