Kelly v. Board of County Commissioners

• Citation: 159 P. 1086,24 Wyo. 386
• Decision Date: 03 October 1916
• Docket Number: 852
• Parties: KELLY v. BOARD OF COUNTY COMMISSIONERS
• Court: United States State Supreme Court of Wyoming

159 P. 1086

24 Wyo. 386

KELLY v. BOARD OF COUNTY COMMISSIONERS

No. 852

Supreme Court of Wyoming

October 3, 1916

ERROR to the District Court, Big Horn County; HON. CHARLES E WINTER, Judge.

Action by Patrick Kelly against the Board of the County Commissioners of Big Horn County, Wyoming, for damages in the establishment of a public road.

Judgment for defendant and plaintiff brings error.

Judgment affirmed.

W. L Walls and C. A. Zaring, for plaintiff in error.

Plaintiff was deprived of his property without due process of law. (Const., Art. I, Sec. 6.) Plaintiff's property was taken for public road purposes without compensation and he is entitled to damages at least in the amount agreed upon. Conceding that the county attorney was without authority to bind the county by an agreement of arbitration, the county having taken and appropriated plaintiff's property was estopped from denying to plaintiff the right of compensation. The county cannot avail itself of any irregularity in arriving at the value of plaintiff's property; the county ratified the compensation agreement made by its agent, Metz and cannot deny the obligation created thereby and retain the benefits of the agreement. (A. & E. Ency., 2nd Ed., 1196-1202.) The evidence clearly established the right of the land taken.

W. S. Collins and E. E. Lonabaugh, for defendant in error.

Plaintiff's petition does not state a cause of action; plaintiff failed to present a claim for damages within the time fixed in the published notice and therefore waived damages. (Sec. 2526, Comp. Stats. 1910.) The alleged arbitration agreement is void and of no effect whatever. Individual members of the county board are not authorized to allow claims against the county; the board can only act at a meeting of the board and in session. (G. I. & N. Wyo. Ry. Co. v. Baker, 6 Wyo. 369.) Persons dealing with a board are bound to know the extent of its powers. (McCurdy v. Shiawashee County, 118 N.W. 625.) A county is not estopped by the enforced acts of its officers. (Harrison County v. Ogden, 110 N.W. 32; State v. Hindson, 120 P. 485.) A board must follow the statutes; (Morse v. Granite Co., 119 P. 286); and can exercise only such powers as are expressly inferred. (Treadwell v. Hancock Co., 11 Ohio St. 183; Jefferson Co. v. Grafton, 20 So. Rep. 247; People v. Van Gaskin, 6 P. 30; Am. & Eng. Ency. of Law (1st Ed.) 375-379.) Or as are clearly implied to carry out the objects and purposes of its creation. (Modoc Co. v. Spencer, 37 P. 483; Cook Co. v. Gilbert, 33 N.E. 761; Jefferson Co. v. Grafton, 27 So. Rt. 247.) And can act only when convening in legal session. (Wightman v. Karsner, 20 Ala. 446; People v. Harrington, 63 Cal. 257; People v. Lathrop, 3 Colo. 428; Martin v. Towsend, 32 Fla. 318; Ottawa v. LaSalle Co., 11 Ill. 654; Cumberland Co. v. Webster, 53 Ill. 141; Benton v. McDonald Co., 84 Ill. 384; Wheeler v. Wayne Co., 31 Ill.App. 299; Potts v. Henderson, 2 Ind. 327; Fayette Co. v. Chetwood, 8 Ind. 504; Loesnity v. Seelinger, 127 Ind. 422; 26 N.E. 887, 25 N.E. 1037; Archer v. Allen Co., 3 Black (Ind.) 501; Jordan v. Osceola Co., 59 Iowa 388 (13 N.W. 344); Rice v. Plymouth Co., 43 Iowa 136; Paola &c.. R. Co. v. Anderson Co., 16 Kans. 302; Anderson Co. v. Paola &c. R. Co., 20 Kans. 534; Reed v. Scituate, 5 Allen (Mass.) 120; Joslyn v. Franklin Co., 15 Gray (Mass.) 567; Plymouth v. Plymouth Co., 16 Gray (Mass.) 341; Crimp v. Colfax Co., 52 Miss 107; Morris v. Merrell, 44 Neb. 423 (62 N.W. 865); Inavale Tp. v. Bailey, 35 Neb. 453 (53 N.W. 465); Merrick Co. v. Batty, 10 Neb. 176 (4 N.W. 959); People v. Schenectady Co., 35 Barb. (N. Y.) 408; Motter v. Pittsburg, 56 How. Pr. (N. Y. S. C.) 290; Van Antwerp v. Kelly, 50 Hun (N. Y.) 513; Cleveland Co. v. Seawell, 3 Okla. 281 (41 P. 592); Pike Co. v. Rowland, 94 Pa. St. 238; Ezell v. Justices, 3 Head (Tenn.) 583; District School Trs. v. Wemberly, 21 S.W. 49, 2 Tex. Cir. App. 404; Oconto Co. v. Hall, 47 Wis. 208 (2 N.W. 291); Hamilton Co. v. Webb, 47 Kan. 104; 27 P. 825.) Its powers cannot be delegated to others. (Scollay v. Butte Co., 7 P. 661; People v. St. Clair Co., 15 Mich. 85; Mansel v. Nicely, 175 Pa. St. 367; Miller v. Emtree, 88 Ind. 133; Losscan v. Harris Co., 58 Tex. 511; People v. St. Lawrence Co., 25 Hun (N. Y.) 131.) Where a record is required it is evidence of their acts. (Polly v. Hopkins, 11 S.W. 1084.) A contract cannot be shown by the separate assent of an individual member. (Eigeman v. Posey Co., 82 Ind. 413.) The powers of a board to contract are limited by statute. (Sexton v. Cook Co., 28 N.E. 608; Kelly v. Hide, 20 Cal. 594; Smith v. Los Angeles Co., 34 P. 439; Franklin Co. v. Layman, 33 N.E. 1094; Henry Co. v. Gillies, 38 N.E. 40; Tippicanoe Co. v. Barnes, 24 N.E. 137; Lee v. Huntington Co., 24 N.E. 986; State v. Saline Co., 27 N.W. 122; State v. Lancaster Co., 30 N.W. 538; Hide v. Kenoxh Co., 43 Wis. 129.) The arbitration agreement was excessive, unfair, prejudiced and signed by but two arbitrators. The arbitration was not statutory; no bond was given. (Sections 4929, 4939, Comp. Stats. 1910.) All the arbitrators must join in the award in the absence of a statute to the contrary. (2 Ency. of Law, Page 643 (2nd Ed.) The evidence as to damages, even if damages were recoverable in this action, is conflicting and the judgment should not be disturbed. (Albany Bldg. Assn. v. City of Laramie, 10 Wyo. 54; O'Brien v. Clark, 4 Wyo. 443; Wyman v. Quayle, 9 Wyo. 326; Ketchum v. Davis, 3 Wyo. 164; Hester v. Smith, 5 Wyo. 291; Conway v. Smith Merc. Co., 6 Wyo. 468; Columbia Min. Co. v. Duchess M. Co., 13 Wyo. 244; Slothower v. Hunter, 15 Wyo. 189; Riordan v. Horton, 16 Wyo. 363.)

SCOTT JUSTICE. POTTER, CHIEF JUSTICE, concurring. Justice Beard concurs in the view of the case of POTTER.

OPINION

SCOTT, JUSTICE.

This proceeding in error is to reverse and vacate that certain judgment made and entered in the District Court of Big Horn county in favor of the county, defendant there and defendant in error here, wherein the court failed to assess and award damages to the plaintiff there and plaintiff in error here in a specified sum alleged to be the value of a certain right of way for a public road over and across his premises. The case was tried to the court without the intervention of a jury and judgment was rendered in favor of the defendants and the plaintiff brings error.

1. The evidence tends to show that before the case was commenced a question had arisen between the parties hereto with reference to the value of the proposed right of way across and over the N.E. 1/4 of the S.W. 1/4, and the N.W. 1/4 of the S.E. 1/4 of section 17, Township 52 N. of Range 104. On May 16, 1910, the county and prosecuting attorney of Big Horn county without precedent authority and Patrick Kelly, as administrator, attempted to agree upon a method of settlement for a right of way and interest thereon at eight per cent. per annum from the date of such agreement, in words and figures, as follows:

"This agreement made and entered into this 16th day of May A. D. 1910 by and between the Board of County Commissioners of the County of Big Horn Wyoming, party of the First part and Patrick Kelly, as Administrator of the estate of Mary Kelly deceased, party of the second part:

"Witnesseth: --That whereas Patrick Kelly as administrator of the estate of Mary Kelly, deceased is the owner of and has a legal estate in the following described real estate, in Big Horn County, Wyoming, as follows, to-wit: --Northeast quarter of Southwest quarter of Section Seventeen, Township Fifty-two (52) N. R. 104 W. N.W. 1/4 S.E. 1/4-17-52-104W.

"And whereas the party of the first part wished to obtain from the party of the second part a right of way over and across said land for a public road, as now surveyed and platted as per map of U.S. R. S. now on file in the office of the County Clerk of said county and marked map S-891 and S-1093 and in accordance with the plat and survey hereto attached and made a part hereof.

"Now therefore it is agreed by and between the parties hereto.

"1st--The party of the second part now and here delivers to the party of the first part a quit claim deed for the right of way surveyed, platted and as mentioned in the above agreement and the plat and map S-891 as above mentioned and as shown in said deed.

"2nd--The party of the first part agrees to pay to said party of the second part, for said right of way as conveyed a sum or sums of money, if any may be found to be due and payable by the award of the arbitrators hereinafter set forth.

"3rd. --It is mutually agreed and determined by the parties hereto, that for the purpose of fixing and determining the cash value of the lands required for said right of way, for damages sustained by reason thereof and for any other damages in any manner sustained by the party of the second part, or his heirs by reason by said right of way, there shall be appointed a board of arbitration, consisting of three free holders, of the County of Big Hon, Wyoming, in the manner following:

"The party of the first part to select one person, the party of the second part to select one person, and those two persons so selected shall select a third person, which said board shall within three days after being thus selected meet together at some convenient place upon the land above described over which the right of way passes, and thereupon proceed to view and examine into the matter of damages by reason of said right of way, and thereupon to make an award of their findings under oath of all damages, if any are found, by reason of said premises and to fix and determine the amount thereof. It is further agreed that such finding and award shall be final subject to the right of appeal to the district court by either party hereto.

"It is...