Lamansky v. Williams
| Decision Date | 17 November 1904 |
| Citation | 101 N.W. 445,125 Iowa 578 |
| Parties | FRANK LAMANSKY, Appellee, v. NEWTON WILLIAMS, ET AL., Appellants |
| Court | Iowa Supreme Court |
Appeal from Jefferson District Court.--HON. M. A. ROBERTS, Judge.
PROCEEDINGS under a writ of certiorari. The case is presented by the following statement of facts: Jefferson county lies immediately to the south of Washington county. While the county records in respect thereto are deficient in some respects, it may be said, for the purpose of the case, and especially as this is consistent with the attitude of all parties to the litigation, that in the year 1859 a highway was laid out and established by the authorities of Jefferson county, beginning on the line between said county and Washington county, and extending south a distance of one mile to intercept an east and west highway known as the "Brighton Road." In the proceedings for such highway, no mention is made respecting an extension of the line thereof into Washington county. In the following year on petition and consent of all the landowners directly interested, the county authorities of Washington county laid out and established a public highway beginning at the county line--the point named being the point of beginning named for the highway in Jefferson county--and extending north a distance of about half a mile to intercept a highway running diagonally northwest and southeast, known as the "Mt Pleasant Road." No mention is made in such proceedings of the road existing in Jefferson county. Both roads were opened and worked, and the way, as a whole, has been continuously used down to the present time.
In the year 1902 S. G. Wood and others petitioned the board of supervisors of Jefferson county for the vacation of the highway in said county; the petition reciting that a like petition "is being presented to the board of supervisors of Washington county for the vacation of the extension of said road in said county." A commissioner was appointed who reported in favor of the vacation on the ground of want of utility. The plaintiff in this action, Frank Lamansky, and others, filed a remonstrance, and a hearing was had before the board, resulting in an order for vacation, conditioned only upon payment within sixty days of all costs by petitioners. Thereupon these proceedings were commenced; the defendants named being the members of the board of supervisors of Jefferson county and S. G. Wood et al petitioners for the vacation of the road. The averments of plaintiff's petition material to be considered are that the defendant board acted illegally and in excess of jurisdiction in making the order for vacation, for "that said order was not made, nor does it purport to be made, with the concurrent action of the board of supervisors of Washington county, and the board of supervisors of Washington county have not heard or finally determined the matter, nor is the said order conditioned thereon." A writ having issued and return being made, trial was had before the court. At the close of the trial, and for the avowed purpose of making his pleadings conform to the proof, plaintiff amended his petition, setting up that the defendants were estopped from claiming that the highway in question is not one extending across the county line, for that in the petition for vacation the petitioners admitted and acknowledged that said road did extend into Washington county; further, upon the theory that such was the fact, both parties had proceeded throughout the course of the trial.
In addition to the facts hereinbefore set forth, it was made to appear upon the trial that in December, 1901, the county auditor of Washington county appointed a commissioner to examine into the expediency of vacating that portion of the way in question located in Washington county; that the commissioner so appointed made report to the county auditor recommending the vacation. It also was made to appear aliunde that the commissioners of the two counties respectively conferred with each other as to the advisability of vacating the way as a whole. It does not appear that any further action was taken by the auditor of Washington county, nor does it appear that the matter was at any time or in any way brought to the attention of the board of supervisors of that county. It was the judgment of the trial court that "the order made by the defendant the board of supervisors providing for the vacation of the road in question be, and the same is hereby, modified, in that it is ordered that the said order shall not take effect until a like order shall have been made by the board of supervisors of Washington county relative to the vacation of that part of said road located in Washington county." In all other respects the order of the board was approved. The costs were ordered taxed to the defendants petitioners for the vacation. The defendants appeal.
Reversed.
Leggett & McKemey, for appellants.
E. F. Simmons and Rollin J. Wilson, for appellee.
The precise question presented by appellants may be thus stated Can the board of supervisors of a county vacate a county road, conceded to...
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