Howard v. Brown

• Decision Date: 17 October 1893
• Citation: 56 N.W. 713,37 Neb. 902
• Parties: HOWARD ET AL. v. BROWN ET AL.
• Court: Nebraska Supreme Court

37 Neb. 902

56 N.W. 713

HOWARD ET AL.

v.BROWN ET AL.

Supreme Court of Nebraska.

Oct. 17, 1893.

Syllabus by the Court.

1. The provision of section 7, c. 78, Comp. St., that roads must not be established through any burying ground, or any garden, orchard, or ornamental ground, etc., without the consent of the owner, applies only to roads established under the general provisions of the road law.

2. The establishment of section-line roads is governed by the special provisions of section 46 of the road law, by which all section lines are declared to be public roads, and may be opened as such whenever, in the judgment of the county boards, the public interest demands.

Error to district court, Clay county; Morris, Judge.

Action by Ezra E. Howard and others against Ezra Brown and others for an injunction. Defendants had judgment on demurrer to the petition, and plaintiffs bring error. Affirmed.S. W. Christy, for plaintiffs in error.

Wm. M. Clark and M. S. Edgington, for defendants in error.

POST, J.

This was a proceeding in equity in the district court of Clay county, by the plaintiffs in error, to enjoin the defendants in error, the county clerk and members of the board of supervisors, from opening a road along the section line between sections 26 and 35 in township 5, range 6, adjoining the city of Edgar, in said county. The ground upon which the relief is sought is that the plaintiffs are the owners in fee simple of the W. 1/2 of the N. E. 1/4 of section 35, and the S. W. 1/4 of the S. E. 1/4 of section 26; that they have a valuable orchard of apple trees on the line between the two sections, which would be destroyed by the opening of the threatened road along said line; also, that it would necessitate the digging of a new well, and the removal of their tanks, windmill, feed yards, and sheds, to their great damage and inconvenience. A demurrer to the petition was sustained by the district court, and the action dismissed, whereupon the cause was brought into this court by petition in error.

The only question which calls for notice is whether the petition states a cause of action. The reliance of plaintiffs in error is upon the provisions of section 7, c. 78, Comp. St., entitled “Roads,” as follows: “The commissioner is not confined to the precise matter of the petition, but may inquire and determine whether that or any road in the vicinity, answering the same purpose and in substance the same, be required; but such road must not be established through any burying ground which is exempt from execution; nor through any garden, orchard or ornamental grounds contiguous to any dwelling house, so as to cause the removal of any building without the consent of the owner.” From a careful reading of the chapter above referred to, it is evident that sections 4 to 35 thereof, inclusive of both sections, have reference to the ordinary proceeding for the establishment of roads, in which a petition and notice are essential in order to give the county board jurisdiction to act, and are not applicable to section-line roads, which are governed by the special provision contained in section 46, as will be observed hereafter. Sections 6, 7, 8, and 9 have especial...