Godchaux v. Carpenter

• Citation: 14 P. 140,19 Nev. 415
• Decision Date: 02 June 1887
• Docket Number: 1,243.
• Parties: GODCHAUX v. CARPENTER and others.
• Court: Supreme Court of Nevada

14 P. 140

19 Nev. 415

GODCHAUX v. CARPENTER and others.

No. 1,243.

Supreme Court of Nevada

June 2, 1887

Application for writ of certiorari.

M. S Bonnifield and H. F. Bartine, for petitioner.

LEONARD C.J.

This is an application for a writ of certiorari to review the action of the board of county commissioners of Humboldt county, in this state, in making the following order, May 5 1886, to-wit: "The board, having under consideration the petition of Edward Lyng and other resident tax-payers of Willow Point road-district, praying for the location opening, and establishing, for public use, of a public road and highway, described in said petition, and situated in said road-district, and evidence having been produced before the board, and heard by it, in said matter, and it appearing to the board therefrom that said petition was signed by a majority of the resident tax-payers of said Willow Point road-district, and was in all respects in conformity with the law in such case made and provided, the board granted said petition, and appointed P. W. Cunningham, a disinterested person, as road viewer on its part, with such powers and authority as are provided by law."

Plaintiff is the owner of the S.W. 1/4 of the S.E. 1/4 of section 10 township 39 N., range 39 E., through which said road, if opeFned, will pass. The statute provides that, "at any time when a majority of the resident tax-payers of a road-district, according to the last previous assessment roll, shall petition the county commissioners of their respective counties for the location, opening for public use, establishment, change, or vacation of any public road or highway, or road to connect with any highway, heretofore established, any street, or alley in any incorporated town in such county, setting forth in such petition the beginning, course, and termination of such road or highway, street or alley, proposed to be located and opened for public use, established, changed, or vacated, together with the names of the owner or owners of the land through which the same will pass, said petition may be presented to the county clerk of said county, and the clerk shall lay said petition before the board of county commissioners at their next meeting after the reception of said petition, and thereupon said board of commissioners shall, within 30 days thereafter, proceed to locate, open to public use, establish, change, or vacate such road, highway, street, or alley. Before opening any new road, street, or alley , or changing same, through private property, such property shall be condemned for public use, as follows: ***"

It is alleged in the petition filed in this court that plaintiff will sustain great damage and injury by the opening of said road, and that, unless restrained, defendants intend to and will proceed to locate, establish, and open said road, through plaintiff's said land, until the same is completed, to plaintiff's irreparable damage, and that, for several reasons stated, the board exceeded its jurisdiction in making the order before recited.

It is well settled that a board of county commissioners is a body possessing but limited and special powers; that, when its power or authority to do any particular thing is questioned, the record must show affirmatively all the facts necessary to give it authority to perform the act complained of, and that, when this is not the case, the presumption is against its jurisdiction. Swift v. Commissioners of Ormsby Co., 6 Nev. 97; State v. Board of Commissioners, 12 Nev. 19; Curran v. Shattuck, 24 Cal. 435; Finch v. Tehama Co., 29 Cal. 454.

It is just as well established, also, that "the exercise of the right of eminent domain, whether directly by the state or its authorized grantee, is necessarily in derogation of private rights; and the rule is that the authority is to be strictly construed. *** What is not granted is not to be exercised." Lance's Appeal, 55 Pa. St. 26.

Stanford v. Worn, 27 Cal. 172, was an action to condemn lands for state prison purposes, under a statute passed to that end. The court said: "In order to render proceedings of this character effectual for any purpose, the provisions of the statute by which they are authorized must be strictly followed. The power must be exercised precisely as directed, and there can be no departure from the mode prescribed without vitiating the entire proceedings. When certain steps are authorized by statute in derogation of the common law, by which the title of one is to be divested and transferred to another, every requisite having the semblance of benefit to the former must be strictly complied with." Atkins v. Kinnan, 20 Wend. 241. "The right to appropriate private property to public uses lies dormant in the state, until legislative action is had, pointing out the occasions, the modes, conditions, and agencies for its appropriation. Private property can only be taken pursuant to law; but a legislative act declaring the necessity, being the customary mode in which the fact is determined, must be held to be, for this purpose, 'the law of the land,' and no further finding or adjudication can be essential, unless the constitution of the state has expressly required it. When, however, action is had for this purpose, there must be kept in view that general, as well as reasonable and just, rule, that whenever, in pursuance of law, the property of an individual is to be divested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the proceedings will be ineffectual. Those 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 proceeding must show affirmatively such compliance." Cooley, Const. Lim. 657. And see Nichols v. Bridgeport, 23 Conn. 208; Kroop v. Forman, 31 Mich. 144; Sharp v. Speir, 4 Hill, 86; Bensley v. Water Co., 13 Cal. 315; Dalton v. Water Commissioners, 49 Cal. 222; Mitchell v. Railroad & C. Co., 68 Ill. 286; Sharp v. Johnson, 4 Hill, 92.

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