Lesieur v. Custer County

• Decision Date: 10 April 1901
• Docket Number: 9,431
• Citation: 85 N.W. 892,61 Neb. 612
• Parties: LOUIS LESIEUR v. CUSTER COUNTY
• Court: Nebraska Supreme Court

85 N.W. 892

61 Neb. 612

LOUIS LESIEUR v. CUSTER COUNTY

No. 9,431

Supreme Court of Nebraska

April 10, 1901

ERROR from the district court for Custer county. Tried below before GREENE, J. Affirmed.

AFFIRMED.

H. J Shinn and Nathan T. Gadd, for plaintiff in error.

J. R Dean, contra.

OPINION

SULLIVAN, J.

Louis Lesieur, the plaintiff in error, appealed from an adverse decision of the county board of Custer county upon a claim for damages filed under the provisions of the road law. In his petition in the district court he alleged that he was the owner of a quarter section of land in Custer county; that a petition had been filed in the office of the county clerk of said county signed by J. T. Ripley, W. W. Thompson, A. N Copsey, "and others, praying for the location of a public highway across the premises of this plaintiff," and that the board of supervisors "acted upon said petition and located said highway." It was also alleged in the petition that the plaintiff sustained damages to the amount of $ 200 by reason of the location of said road. The answer of the county was in substance a general denial. A jury impaneled to try the cause found, in obedience to a peremptory instruction, that the plaintiff had no cause of action, and judgment was thereupon rendered in favor of the defendant. We are of opinion that the trial court reached a right conclusion and that its decision should be affirmed.

The county having denied the existence of a road across the premises described in the petition, the burden was on the plaintiff to show that his land had been regularly condemned or at least that it had been physically appropriated to the use of the public by the action of the county authorities. There is nothing whatever in the record from which it may be legitimately inferred that the petition contemplated by section 4 of the act on the subject of roads (Complied Statutes, 1899, ch. 78) was ever filed in the office of the county clerk, or that the notice mentioned in section 18 of the same act was ever given. That the filing of a petition in accordance with section 4, and the giving of notice in compliance with section 18, are conditions precedent to the making of an order by the county board establishing a public road has been long settled in this state. Sioux City & P. R. Co. v. Washington County, 3 Neb. 30; Robinson v. Mathwick, 5 Neb. 252; Doody v. Vaughn, 7 Neb. 28; State v. Otoe County, 6 Neb. 129; Beatty v. Beethe, 23 Neb. 210, 36 N.W. 494. In Robinson v. Mathwick, supra, at page 255, it is said: "The board of county commissioners is a tribunal possessed of but a very limited...