Kiekenapp v. Supervisors of the Town of Wheeling

• Citation: 64 Minn. 547,67 N.W. 662
• Parties: KIEKENAPP v SUPERVISORS OF THE TOWN OF WHEELING.
• Decision Date: 02 June 1896
• Court: Supreme Court of Minnesota (US)

64 Minn. 547

67 N.W. 662

KIEKENAPPvSUPERVISORS OF THE TOWN OF WHEELING.

Supreme Court of Minnesota.

June 2, 1896.

(Syllabus by the Court.)

1. The three members of the town board of supervisors acted in laying out a highway. One of them was interested, as he owned one of the parcels of land over which the highway was laid out; but the other two, constituting a majority of the board, were not interested. Held, the proceedings were voidable, but not absolutely void.

2. The appellant owned and occupied one of the parcels of land over which the highway was laid out, but was not named in the petition or served with written notice of the time and place of the meeting of the board. However, he appeared, took part in the proceedings, and was awarded damages. Held, he waived the defects in the proceedings.

Appeal from district court, Rice county; Thomas S. Buckham, Judge.

Charles F. Kiekenapp appealed to the district court from an order of the supervisors of the town of Wheeling laying out a highway. The order was affirmed by the verdict of the jury, and from an order denying a new trial he brings this appeal. Affirmed.

Geo. N. Baxter, for appellant.

T. H. Quinn, for respondent.

CANTY, J.

Kiekenapp was the occupant and owner of land through which the town supervisors laid out a highway. He appealed to the district court from the order laying out the same, on the following grounds, and for the following purpose, as stated in the notice of appeal: “That said order, determination, and award are and each of them is void; that said highway is unnecessary; that the damages occasioned thereby to appellant are two hundred dollars; that the amount of damages awarded appellant was but twenty-five dollars. And you are hereby notified that said appeal is brought both in relation to said damages and to reverse entirely the said order, determination, and award, and each and every of them.” On a trial before the court and a jury the order appealed from was, by the verdict of the jury, in all respects affirmed, and from an order denying a new trial he appeals to this court.

1. When the petition for laying out the highway was presented, and when the highway was laid out and the damages assessed by the three supervisors, Deike, who was one of them, owned another parcel of land over which the highway was laid out, and he was awarded damages for the land taken from him. It is contended by appellant that Deike could not be judge in his own cause; that, therefore,...