Fair v. Buss

• Decision Date: 21 May 1902
• Citation: Fair v. Buss, 117 Iowa 164, 90 N.W. 527 (Iowa 1902)
• Parties: FAIR v. BUSS.
• Court: Iowa Supreme Court

117 Iowa 164

90 N.W. 527

FAIR

v.BUSS.

Supreme Court of Iowa.

May 21, 1902.

Appeal from district court, Ida county; X. A. Church, Judge.

The plaintiff is the owner of land abutting a highway which was established by the board of supervisors in 1876. He fenced a portion thereof, and the fence was removed by the defendant, who was at the time the road supervisor of that district. This action was brought to restrain the defendant from further interfering with the plaintiff's fences. There was a judgment for the defendant, from which the plaintiff appeals. Affirmed.Will E. Johnston, for appellant.

W. A. Helsell, for appellee.

SHERWIN, J.

The highway in question was established by the board of supervisors of Ida county, without personal notice to the resident landowners, as required by section 936 of the Code of 1873. The then owner of the plaintiff's land was a nonresident, and the land was unoccupied and unimproved. The following notice was published four weeks in a newspaper printed in the county, which is conceded to be the only notice he had: “Road Notices. To Whom it May Concern: The commissioners appointed to examine and report upon the expediency of locating the following roads: Road No. 18, commencing at the southeast corner of section 36, township 88, range 39, and runs thence westerly on township lines 15 miles to the southeast corner of section 33, township 88, range 41, has reported in favor of the same, and all objections thereto or claims for damages must be filed in my office on or before the 5th day of June, 1876, or said roads will be established without reference thereto. Matt. M. Gray, County Auditor.” It will be seen that this notice follows the form prescribed by the statute almost to the letter, and it was undoubtedly supposed to be sufficient, without naming the nonresidents whose names appeared on the transfer books of the county auditor; but the question has been decided otherwise. State v. Iowa Cent. Ry. Co., 91 Iowa, 275, 59 N. W. 35;Moffet v. Brainard, 92 Iowa, 122, 60 N. W. 226, 26 L. R. A. 821. The 20th general assembly passed the following legalizing act, which the appellant contends was unconstitutional, for reasons which we shall hereinafter notice: “Whereas the board of supervisors of Ida county, Iowa, on the 7th day of January, 1876, were petitioned by W. P. Evans and G. F. Barnes to appoint a commissioner to locate county roads on all section lines in Ida county, Iowa, where practicable and where roads would probably be needed and have not yet been located; and, whereas, on the 6th day of June, 1876, the said board of supervisors at a regular meeting thereof made an order establishing highways in said county in accordance with the request of said petitioners; and, whereas, doubts have arisen as to the regularity of the said proceedings of the said board and other officers in establishing said highways: Therefore be it enacted by the general assembly of the state of Iowa: Section 1. That the establishing and locating of all highways and proceedings and acts of the board of supervisors and other officers of Ida county, Iowa, in establishing highways by said order of the board of supervisors on the 6th day of June, 1876, be and the same are hereby legalized and declared valid and binding in all respects the...