Hentzler v. Bradbury

• Decision Date: 29 December 1896
• Docket Number: 80
• Citation: 47 P. 330,5 Kan.App. 1
• Parties: J. C. HENTZLER v. WILLIAM BRADBURY
• Court: Kansas Court of Appeals

47 P. 330

5 Kan.App. 1

J. C. HENTZLER v. WILLIAM BRADBURY

No. 80

Court of Appeals of Kansas, Northern Department, Eastern Division

December 29, 1896

December 29, 1896,

Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge. Reversed.

Judgment reversed and case remanded.

S. B Isenhart, for plaintiff in error.

H. C Safford, for defendant in error.

OPINION

GARVER, J.

This case was submitted at the March, 1896, term of this court but its consideration and decision have been delayed until this time because of a question of jurisdiction. Being of the opinion that the controversy herein was not one having a money value, within the meaning of section 9 of the act creating the Court of Appeals, (ch. 96, Laws 1895,) and, therefore, that this court, within the rule recently announced by us in the case of Stephens v. Moore, 4 Kan.App. 757, had no jurisdiction, we certified the record to the Supreme Court. But that court, not agreeing with our views on the question of jurisdiction, returned the case to this court, and it is now here for decision.

By this action the plaintiffs in error sought to enjoin the defendant in error, as road overseer, from entering upon, and appropriating for a public road, a portion of their lands in Shawnee County. The road overseer justified his action under and by virtue of certain proceedings had before the supervisors of the township in which said land was situated; by which, it was claimed, a public highway had been laid out on and through said lands under and in accordance with an act of the Legislature entitled "An act to Provide for Locating and Working Highways," approved February 4, 1859, (ch. 77, Kan. Stat. 1859.) The injunction prayed for was denied by the Circuit Court of Shawnee County, and from such decision this appeal has been taken.

This case rests for its proper determination upon the proceedings of the Board of Supervisors of Topeka Township, in Shawnee County. If such proceedings were regular and valid, the action of the plaintiff must fail. The evidence shows that, in 1859 and prior thereto, there was a traveled track, or wagon road, running north and south near the half-section line through sections 6 and 7, township 12, range 16, in Shawnee County; that, about July 9, 1859, a petition, in proper form, was presented, signed by twenty-three persons purporting to be resident free-holders of said township, asking the Board of Supervisors to lay out a public highway commencing at the north line of said section 6 and running on the half-section line through said section and through a part of section 7; that this petition and the laying out of said road were subsequently considered at different meetings by said Board of Supervisors, and, finally, on December 28, 1859, it was ordered that the prayer of the petition be granted. A survey and plat of the proposed road was subsequently filed. At that time, the land over which the road was to be opened was unenclosed and without obstruction to public travel; but the traveled track, thereafter and up to the time of the commencement of this action, continued, as before, on the west side of the half-section line. Subsequently, and probably very soon after the order was made to open the road, a hedge was planted on or near the half-section line through section 7 -- the land on the east side being cultivated, and the public travel confining itself exclusively to the west side of said half-section line. In 1891 the road overseer for that district cut down a portion of said hedge, and was about to enter upon the land on the east side of said half-section line for the purpose of appropriating so much thereof as was necessary to open, on said half-section line, a public road sixty-six feet wide. The question is whether a public road had been legally established on this line.

The record of the proceedings of the Board of Supervisors, which was introduced in evidence, fails to show any finding that the petition for the road was signed by the requisite number of resident free-holders, or that the statutory notice was given of the meeting of the supervisors to view the proposed road; and no attempt was made upon the trial to supply such omission by other evidence. The presentation of a proper petition and the giving of the statutory notice were jurisdictional. Without them, the board had no authority to act. The foundation of its jurisdiction was a petition signed by six or more free-holders residing in the township. The next jurisdictional step, the statute, (ch. 77, Kan. Stat. 1859,) requires:

"SEC. 49. Upon application made to the supervisors for laying out, altering or discontinuing any highway, they shall make out a notice and fix therein a time and place at which they will meet and decide upon such application; and the applicant shall, at least five days previous to such time, cause such notice to be given to all...