Graham v. Flynn

• Decision Date: 16 February 1887
• Citation: 21 Neb. 229,31 N.W. 742
• Parties: GRAHAM v. FLYNN, OVERSEER OF HIGHWAYS, AND OTHERS.
• Court: Nebraska Supreme Court

21 Neb. 229

31 N.W. 742

GRAHAM

v.FLYNN, OVERSEER OF HIGHWAYS, AND OTHERS.

Supreme Court of Nebraska.

February 16, 1887.

Syllabus by the Court.

Where the testimony tends to show that notices for the location of a publicroad, not signed, were duly posted, and a petition thereafter presented to the county commissioners, signed by more than 10 land-owners, praying for the location of such road as described in the notices, and a public road was thereupon located, opened, and traveled for more than 10 years, held a valid public road.

A petitioner for the location of a public road over his own land is not entitled to notice of the pendency of such action. He is in fact a plaintiff to the proceeding; and where a petition signed by the requisite number of land-holders has been acted upon by the proper authorities, and a road located, a grantee of such petitioner cannot enjoin the use of the road upon the ground of want of notice to his grantor.

Appeal from Lancaster county.

Harwood, Ames & Kelly, for plaintiff.

Lamb, Ricketts & Wilson, for defendants.

MAXWELL, C. J.

Petition of Graham in Lancaster county district court, filed May 21, 1885, for an injunction to prevent the taking of 33 feet from the west line of N. 1/2 of N. W. 1/4, 2, 9, 6 E., in Lancaster county, for a public road, and the destruction of a crop of rye and of a hedge growing on said strip, on the grounds that there had been no petition lawfully acted on by the county commissioners for the opening there of a public road; that neither plaintiff nor his grantors had had any notice of the opening of the road; that they had had no opportunity to apply for the compensation; and that no compensation for the taking of the land had been offered or tendered to them. Answer admits that about May 14, 1885, Flynn, overseer of highways, district No. 1, Yankee Hill precinct, Lancaster county, Nebraska, notified plaintiff to remove the hedge aforesaid, as an obstruction to the highway there laid out, denying all other allegations. For a second defense the answer alleges a petition on July 5, 1871, of C. M. Wittstruck and 75 others, to the county commissioners of Lancaster county, praying for the location of a county road over the land in controversy, due and legal notice of the filing of the same having been given at least 20 days prior thereto; the hearing of said petition on aforesaid day; appointment of a commissioner, whose report recommended the granting of the petition, and location of road accordingly, about August 1, 1871,--all the requirements of law to that end having been complied with. For a third defense answer alleges opening of said road, and continuous and uninterrupted user for a period of more than 10 years.

The petition clearly shows that, in the year 1871, E. Veitz, the grantor of Graham, was the owner of the land in controversy, and signed a petition, with 75 others, for the location of said road. This is proved beyond controversy by the introduction in evidence of the original petition containing the name of Veitz, which was shown to be genuine by a witness familiar with his signature. This petition was presented to the county commissioners of Lancaster county, and by them acted upon, by the appointment of a commissioner, who was instructed to proceed to view the road proposed, and, if in his opinion the public good required the proposed road, he was authorized to lay out, mark, and plat the same. The commissioner did view the road in question, and, being of the opinion that the public required the location of said road, he laid out, marked, and platted the same, and made his report to the county clerk. The road...