Canyon County v. Toole

• Decision Date: 04 February 1904
• Citation: 9 Idaho 561,75 P. 609
• Parties: CANYON COUNTY v. TOOLE
• Court: Idaho Supreme Court

75 P. 609

9 Idaho 561

CANYON COUNTY v. TOOLE

Supreme Court of Idaho

February 4, 1904

HIGHWAYS-PROCEEDINGS TO CONDEMN LAND FOR-PETITION-NONCONSENTING LAND OWNERS-APPEARANCE-BOARD OF COUNTY COMMISSIONERS-APPEAL FROM ORDER OF BOARD-PROCEEDINGS IN COURT TO PROCURE RIGHT OF WAY.

1. Under the provisions of sections 920 and 921, Revised Statutes, a petition for establishing a public road must contain substantially all of the facts required to be stated therein by the provisions of said section, in order to give the board of county commissioners jurisdiction.

2. If the nonconsenting land owners appear at the hearing of such petition and introduce evidence against the granting of the same, and the decision of the board is against them, and they fail to appeal from the order of the board, they cannot collaterally attack such decision in a suit brought under the provisions of section 930, Revised Statutes, on the ground that the petition failed to state all of the facts required by sections 920 and 921.

3. When the nonconsenting land owner fails to appear at the hearing of the petition, the board has no jurisdiction to hear the same unless it contains substantially the statement of facts required by said sections 920 and 921.

(Syllabus by the court.)

APPEAL from the District Court of Canyon County. Honorable George H Stewart, Judge.

Action to condemn right of way for a public road. Judgment for defendant. Reversed.

Judgment reversed, with costs and cause remanded.

W. A Stone, County Attorney, and Griffith & Griffith, for Appellant.

In the case at bar the defendant Toole had the right to question the sufficiency of the petition for the highway described in the complaint or the regularity of any proceeding thereunder at any time prior to the final action of the board on the viewer's report, and if aggrieved by the action taken could have appealed to the district court. This, however, the defendant failed to do. He appeared and objected, but did not appeal. In the absence of an appeal the action of the commissioners upon the viewer's report became conclusive, and had the force and effect of a final judgment against the defendant. (Fisher v. Hobbs, 42 Ind. 276; Conaway v. Ascherman et al., 94 Ind. 187; Sowle v. Cosner, 56 Ind. 276; Dillman v. Crooks, 91 Ind. 158; Green v. Elliott et al., 86 Ind. 53; Forsythe et al. v. Kreuter et al., 100 Ind. 27; Town of Cicero et al. v. Williamson et al., 91 Ind. 541.) When a petition is presented to a board of commissioners, sufficient in form and substance to invoke its jurisdiction in a matter where it has general jurisdiction of the subject matter, its judgment declaring the petition sufficient cannot be collaterally attacked, although the petition may have been bad. (Mullikin v. City of Bloomington, 72 Ind. 161; Stoddard v. Johnson, 75 Ind. 20; Muncey v. Joest, 74 Ind. 409; Argo v. Barthand, 80 Ind. 63; Coolman v. Fleming, 82 Ind. 117.) The failure of petitioners, invoking the assistance of an inferior judicial tribunal, to aver in their petition all such facts as the statute declares such petition shall contain, does not invalidate the proceedings where there are allegations sufficient to show that the tribunal has a general jurisdiction over the subject matter. (Coolman v. Fleming, supra; Corey v. Swagger, 74 Ind. 211; Elliott on Roads and Streets, 2d ed., sec. 287.)

Frank J. Smith and Rice & Thompson, for Respondent.

It is a familiar doctrine of law that in the exercise of the right of eminent domain, the course established by law must be substantially complied with in all essential particulars "The right to appropriate private property to public use lies dormant in the state until legislative action is had, pointing out the occasions, the modes, conditions and agencies for its appropriation. . . . These provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceedings must show affirmatively such compliance." (Cooley's Constitutional Limitations, 6th ed., p. 648; Idaho Const., art. 1, sec. 14; Godchaux v. Carpenter, 19 Nev. 415, 14 P. 140; Stanford v. Worn, 27 Cal. 172; Sharpe v. Spier, 4 Hill, 86.) Boards of county commissioners in the matter of laying out public highways have only the powers specifically conferred by the statute, and can exercise those powers only in the manner pointed out by the statute. (Gorman v. County Commissioners, 1 Idaho 655; County of Modoc v. Spencer, 103 Cal. 498, 37 P. 483; Damrell v. San Joaquin Co., 40 Cal. 154, Hentzler v. Bradbury, 5 Kan. App. 1, 47 P. 330; Kimball v. Alameda County, 46 Cal. 19; Siskiyou Co. v. Gamlich, 110 Cal. 94, 42 P. 468; Commissioners of Waubensee Co. v. Muhlenbacker, 18 Kan. 129; Sherman v. Buick, 32 Cal. 242, 91 Am. Dec. 577; Smithers v. Fitch, 82 Cal. 153, 22 P. 935; Thatcher v. Crisman, 6 Colo. App. 49, 39 P. 887.) As stated above, our statute requires as the first step in the laying out of a highway the filing of a petition with the board of county commissioners. Our statute in this respect is similar to that of a great many states. It has been uniformly held where the statute makes this requirement, or a similar one, that a petition containing substantially the statement of facts required by the statute is necessary to give the board jurisdiction of the subject matter and that without it the board has no power to act. (In re Grove St., 61 Cal. 438; State v. Myer, 20 Or. 442, 26 P. 308; Howard v. Board of Commerce, 25 Neb. 229, 41 N.W. 185; Sime v. Spencer, 30 Or. 340, 47 P. 919; Craft v. De Soto Co., 79 Miss. 618, 31 So. 204; Thatcher v. Crisman, 6 Colo. App. 49, 39 P. 887; Matter of Commrs. of Washington Park, 52 N.Y. 131; Shell v. Poulson, 23 Wash. 535, 63 P. 204; Curtis v. Pocahontas Co., 72 Iowa 151, 33 N.W. 616; Cowing v. Ripley, 76 Mich. 650, 43 N.W. 648; Ruhland v. Supervisors, 55 Wis. 664, 13 N.W. 877; Morris v. Salle, 14 Ky. Law Rep. 117, 19 S.W. 527.) The true rule is that the matters which appear on the fact of the record must be sufficient to confer jurisdiction according to the terms of the statute, and no resolution or determination of the board could make them different from what they really are. (Mulligan v. Smith, 59 Cal. 206-229.)

SULLIVAN, C. J. Stockslager and Ailshie, JJ., concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.

This action was commenced, by order of the board of county commissioners of Canyon county, to condemn the right of way for a public road over the lands of respondents situated in road district No. 1 of said county. This action was before this court on a former appeal, the decision of which is reported in 8 Idaho 501, 69 P. 320. In the complaint are alleged the facts of filing a petition for the location of said public road under the provisions of sections 920 and 921 of the Revised Statutes, and of the action of the board of county commissioners on said petition. Said petition is as follows:

"To the Honorable Board of County Commissioners:

"Gentlemen We, your petitioners, citizens and taxpayers of Canyon county, respectfully ask that a county road be opened running through lands described as follows."

Then follows a description of the lands, which it is not necessary to insert here, and at the end of said description the following clause or sentence is found, to wit: "as more particularly shown on map attached hereto," and "We would also represent that this proposed road will open up for settlement hundreds of acres of land, and a schoolhouse has already been built thereon, and your petitioners will ever pray." Then follows the names of thirty petitioners. On the plat attached to said petition the lands over which said road is proposed to be extended are platted in forty acre tracts, and the names of certain persons are written on all of the forty acre tracts over which said road extends. It appears from the allegations of the complaint that after filing said petition, and on the tenth day of April, 1899, at a regular meeting of said board, the said petition was considered by said board and found by it to be in proper form and substance, and on motion an order was made appointing three persons to view and survey the said proposed road and submit their report to said board. That thereafter, and on April 7, 1900, the said viewers filed their report, which showed that the viewers had obtained the written consent to give the right of way for said road from all of the land owners over which it passed, except four, the respondent being one of them. Said viewers had estimated the damage to the nonconsenting land owners, and estimated the total cost of constructing the said road at $ 485.00, and recommended the said road be laid out over the route shown by said plat. Thereafter, on the nineteenth day of July, 1900 at a regular meeting of said board, the report of said viewers came on for hearing, and it was ordered that the hearing of said report be set for the eleventh day of September, 1900, and directed legal notice to be given to said nonconsenting land owners and all persons interested. Thereafter on said eleventh day of September, the hearing of said matter was continued to the ninth day of October, 1900, and on that day the hearing was had and the nonconsenting land owners appeared personally and introduced certain evidence in their behalf. And it is alleged that after due and deliberate consideration of all of the evidence and facts presented to said board, it was found that said road was a necessity and a great public benefit, and it was ordered that said report and said petition be approved and granted. It appears that the matter was again reheard by said board on February 25, 1901,...