Latah County v. Hasfurther

• Decision Date: 02 January 1907
• Parties: LATAH COUNTY, Appellant, v. MARTIN HASFURTHER and JOSEPH HASFURTHER, Respondents
• Court: Idaho Supreme Court

88 P. 433

12 Idaho 797

LATAH COUNTY, Appellant, v. MARTIN HASFURTHER and JOSEPH HASFURTHER, Respondents

Supreme Court of Idaho

January 2, 1907

PRIVATE OR BY-ROADS-NUMBER OF SIGNATURES TO PETITION-APPEAL FROM ORDER OF BOARD OF COMMISSIONERS-APPEAL FROM THE DISTRICT TO THE SUPREME COURT-VIEWERS MUST TAKE STATUTORY OATH.

1. Private or by roads may be opened for the convenience of one or more residents of any road district in the same manner as public roads, the person or persons for whose benefit the road is opened paying the damage awarded to land owners and keeping the road in repair. (Rev. Stats. 1887, sec. 933.)

2. One signature is sufficient to authorize the board of county commissioners to take the necessary steps to open a private or by-road under the provisions of section 933 of the Revised Statutes of 1887.

3. If the land owners are dissatisfied with the award for damages or with any of the proceedings of the board of county commissioners with reference to laying out and establishing a private or by-road, they may appeal to the district court where the case will be heard de novo, or they may refuse to accept the award, and thus compel condemnation proceedings.

4. An appeal from the district court to the supreme court in cases of this character is under the provisions of section 4, page 273, Session Laws of 1899, under the title of "An act regulating appeals from the district court to the supreme court," etc.

5. Section 923 of the Revised Statutes of 1887, requiring the board of county commissioners to appoint three viewers, one of whom shall be a surveyor, does not make it the duty of the board to appoint the county surveyor, and when he is appointed one of the viewers, it is as essential that he take the statutory oath as either of the other viewers.

6. Where it is disclosed by the record that all of the viewers did not take the statutory oath, the proceeding is irregular and voidable, and should be reversed on appeal to the district court.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

Respondents moved to reverse or modify order of the board of county commissioners. The motion was sustained and the order reversed, from which order and judgment the county appeals. Judgment affirmed.

Judgment affirmed, with costs to the respondents.

W. E Stillinger and Forney & Moore, for Appellant.

This court has held that a private road may be laid out upon the application of a particular individual; that only one signer is necessary to the road petition. (Latah County v Peterson, 3 Idaho 398, 29 P. 1089; Sherman v. Buick, 32 Cal. 241, 91 Am. Dec. 577.)

An appeal would not lie on behalf of Martin Hasfurther from the action of the board of county commissioners awarding damages to the said Hasfurther, and the district court did not have jurisdiction to render its decision herein. (Canyon County v. Toole, 9 Idaho 561, 75 P. 609.)

The Hasfurthers having appeared in person and with counsel before the board of county commissioners and contested the laying out of said road, introducing witnesses, thereby waived all objections to the jurisdiction of said board, and waived all irregularities which appeared in laying out and establishing said road prior to the date of said hearing.

If these parties were dissatisfied with the award of damages made by the board of county commissioners, the only course left to pursue was to wait until the amount awarded by the said board was tendered and reject the same, thereby compelling the county commissioners to commence condemnation proceedings as required by statute.

S. S. Denning, for Respondents.

It was the intention of the legislature that the matter on appeal from the board should be tried de novo in the district court, and this court has inferentially at least given countenance to the theory. (Great Northern Ry. Co. v. Kootenai Co., 10 Idaho 379, 28 P. 1078; Canyen Co. v. Toole, 9 Idaho 561, 75 P. 609.)

When the county surveyor is appointed one of the viewers under section 923, Revised Statutes, he is not appointed as a county officer, but simply as a citizen, the same as the other viewers, only that he possesses the technical education of a surveyor, and the viewing of roads is not one of the duties of a county surveyor, made so by virtue of his office, because there is nothing to compel him to serve as a viewer, and the statute provides (section 924): "They, the viewers, must be sworn to discharge their duties faithfully." The surveyor, while acting as a viewer, ought himself to have been sworn. The right to appropriate private property to public use lies dormant in the state until legislative action is had, pointing out the occasions, the modes, the conditions and agencies for its appropriation. These provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceedings must show affirmatively such compliance. (Cooley's Constitutional Limitations, 6th ed., p. 648.)

As the statute stood in California, they changed it by apt legislation, so that one petitioner could petition for the road, but the state of Idaho in adopting their code refused to do so.

This court has no jurisdiction of this matter, because the same was not appealed within five days after the decision of the court. (Sess. Laws 1899, p. 249, amending sec. 1779.)

STOCKSLAGER, C. J. Ailshie, J., concurs, Sullivan, J., concurs in the conclusion.

OPINION

STOCKSLAGER, C. J.

This is an appeal from the judgment of the district court of Latah county. In October, 1905, Joseph Kambitch presented to the board of county commissioners of Latah county his petition for a private road. The petition was signed by himself alone. The petition says: "The necessity for and advantage of the establishing of said road are as follows: That your petitioner, Joseph Kambitch, owns two hundred and forty acres in section 2 in said township, and resides there, with his family, long prior hereto; that he has now no public road for ingress and egress or public road facilities whatever, and that the opening of the proposed private road will enable him to reach a public highway in the most convenient manner, and in a manner best calculated to do the least damage to the owners of the land over which the proposed road will run in the event of the petition being granted; that the residents of said road district are either relations or friends of the parties over whose premises said proposed road will run, and your petitioner cannot get ten signers in said road district if that number is required by the county commissioners; that the petitioner further desires to have an outlet to a public road, so that he can attend elections, perform jury duty, road duty, militia duty, give evidence in court, and carry produce of his land to market."

A bond was filed and viewers appointed, who reported to the county commissioners, recommending that the road be granted as prayed for. A hearing was had and an order made by the county commissioners approving the report of the viewers and awarding damages. The order is as follows: "In the matter of the petition of Joseph Kambitch for a private road in road district No. 4, it is ordered that viewers' report therein be approved and damages are hereby awarded as follows: To J. N. Hasfurther, the sum of $ 250.00. To Martin Hasfurther, the sum of $ 300.00." The Hasfurthers appealed from the order of the commissioners granting the said Joseph Kambitch the road through their respective premises as prayed for in his petition and awarding them the sum set out in the order. The appeal is from the order and the whole thereof.

In the district court the prosecuting attorney for Latah county moved to dismiss the appeal: "1. That an appeal will not lie at this time, as the order of the board of county commissioners does not in any manner affect the property or the rights of either Martin Hasfurther or J. N. Hasfurther in that the said order appealed from does not create or establish a public highway; 2. That the said order appealed from by said appellants is an order awarding damages to said appellants, and that the said above-entitled court has not jurisdiction to hear and determine on an appeal from the board of county commissioners the amount of damages to be awarded to nonconsenting land owners in the establishment of public highways; 3. That the said appellants, and each of them, as shown by the said order of the board of county commissioners appealed from, did appear at the time and place fixed by the said board for the hearing of said petition, and contest the laying out of said road, and the amount of damages to be awarded, and thereby waived any and all objections to the jurisdiction of the said board in said case, and any and all irregularities which may have appeared in the laying out and establishment of said road prior to the date of the said hearing; 4. That no order of the said board has been appealed from by the said appellants which in any manner questions the regularity of the proceedings had in said road case or the jurisdiction of the board of county commissioners." It is not shown by the record what disposition was made of this motion, but from orders and proceedings of the court we infer it was overruled. We next find a motion to reverse and set aside the order of the commissioners which affirms the report of the viewers granting said road for the reasons: "1. That no map of the said road has ever been added to the report of, made or presented to, or filed with or by the board of county commissioners; 2. That the petition upon its face shows...