Baird v. Johnston

• Decision Date: 08 April 1941
• Docket Number: 45369.
• Parties: BAIRD v. JOHNSTON et al.
• Court: Iowa Supreme Court

297 N.W. 315

230 Iowa 161

BAIRD v. JOHNSTON et al.

No. 45369.

Supreme Court of Iowa.

April 8, 1941

Appeal from District Court, Louisa County; Paul H. McCoid, Judge.

Mandamus to compel the board of supervisors of Louisa County to institute condemnation proceedings to acquire land taken by it for widening a highway. The trial court denied relief. Plaintiff appeals.

Reversed and remanded.

E. S Simpson, of Morning Sun, for appellant.

Thomas E. Perry, of Columbus Junction, and Hicklin & Hicklin, of Wapello, for appellees.

GARFIELD, Justice.

Plaintiff-appellant owned farm lands on both sides of a public highway. In 1934 defendant-appellee board improved the highway to a width of 66 feet. Appellant had previously upon due notice refused to set his fences back to lines 33 feet from either side of the center line of the road. It is agreed that the single question presented is whether the road prior to 1934 was but 33 feet wide as claimed by appellant, or 66 feet wide as contended by appellee. If the road was but 33 feet in width appellee must acquire by condemnation the land needed for widening the right of way, and appellant is entitled to the relief sought. However, if the road was in fact 66 feet wide as the trial court held, appellee was entitled to improve and utilize it to its full width and appellant cannot complain of the board's action in so doing.

The road in question was established in 1856. At that time the power to establish roads and highways (and we use the two terms interchangeably in this opinion) rested in what was then the county court under Ch. 38, Code of 1851. That chapter provided for the filing of a petition for the establishment of a road, a hearing thereon pursuant to notice, and appointment by the court of a commissioner " to examine into the expediency of the proposed road and to report accordingly." If the report was favorable, after further notice and hearing, the court could establish the road.

The important statute in this case is section 515, ch. 38, Code of '51, which provided: " County and state roads hereafter established must be 66 feet in width unless otherwise specially directed, but the court may for good reasons fix a different width not less than 33 feet."

The petition for the road in question was by one O. P. Mickey and numerous others and provided: " To the County Judge of Louisa County, We the undersigned citizens of Louisa county ask the appointment of a commissioner to lay out and establish a county road 33 feet in width beginning," (etc., describing the proposed course).

The county court's order appointing the commissioner provided: " To Aaron D. Hurley, Esr. Sir, you are hereby appointed a commissioner to view and locate a county road 33 feet wide if in your opinion the public good require the location of the same. Commencing" (etc., describing the course of the road as in the petition).

The report of the commissioner to the county court recommended the road as described in the petition but made no mention of its width. The order of court establishing the road reads as follows:

" County Court May 5, 1856.

In the Matter of the road petitioned for by O. P. Mickey and others.

Now on this 5th day of May, 1856, comes into court O. P. Mickey and presents his petition for a county road as follows: to be 33 feet wide, beginning (here the course of the road is described as in the petition).

The court after a full examination in the premises and being satisfied the necessary prerequisitions had been complied with, appoints A. D. Hurley commissioner to view said road, and to report to this court at his most earliest convenience. Who reports his doings hereon to the effect that said road should be established and the first Monday in May being set for final hearing.

And now comes this road case, and after a full examination in the premises, and no...