Mahoney v. Kelley (In re Judicial Road in Scott & Le Sueur Counties)

• Decision Date: 13 July 1923
• Docket Number: No. 23545.,23545.
• Citation: 194 N.W. 775,156 Minn. 327
• Parties: In re JUDICIAL ROAD IN SCOTT AND LE SUEUR COUNTIES. MAHONEY et al. v. KELLEY et al.
• Court: Minnesota Supreme Court

156 Minn. 327

194 N.W. 775

In re JUDICIAL ROAD IN SCOTT AND LE SUEUR COUNTIES.MAHONEY et al.

v.KELLEY et al.

No. 23545.

Supreme Court of Minnesota.

July 13, 1923.

Certiorari from District Court, Scott County; M. C. Tifft, Judge.

Petition by Cornelius Mahoney and others for the location of a judicial road in the counties of Scott and Le Sueur. There was an order establishing the road, and J. P. Kelley and others, objectors, bring certiorari. Affirmed.

Syllabus by the Court

The petition for a judicial road which states that it begins at a given point and extends due south on designated section lines to a given point sufficiently describes the road, although there may be correction lines which will vary the road from a due south course.

Service of a summons on a county as provided in section 7733, Gen. St. 1913, is sufficient to confer jurisdiction, although such service was not made during or within ten days before a session of the county board.

There was no need to estimate costs and damages or make a formal survey of that part of the road which ran on a township line over an existing road already constructed.

The fact that the court did not fix the time and manner of opening the road in the order establishing it, but directed a further hearing for the purpose of determining that question and the question as to the apportionment of costs and damages, did not affect the validity of the proceedings.

The propriety of establishing a public highway is a purely legislative question. When a highway has been established in the manner authorized by the Legislature, the necessity for it is presumed, and this presumption can be overcome only by showing conclusively that it will serve no public purpose. Moonan & Moonan, of Waseca, and F. C. & H. A. Irwin, of Belle Plaine, for petitioners.

Jesse Van Valkenburg, of Minneapolis, for objectors.

TAYLOR, C.

Writ of certiorari to review the action of the district court of the Eighth district in establishing a judicial road in the counties of Scott and Le Sueur under and pursuant to section 41 of chapter 323 of the Laws of 1921.

1. Relators assert that the description of the road in the petition is defective. As described in the petition it begins at a designated quarter-section corner and runs thence due south on the section lines, which in this case happen also to be township lines, to a designated section corner. The objection seems to be that a line running due south from the point of beginning may not coincide with these section lines as located by the government survey for the reason that it fails to take correction lines into account. The plat of the road shows that it runs along the township lines in a straight line from the point of beginning to the point of termination. If there be a correction line which would vary the direction or location of the section lines that fact is not shown, and, even if it were, it would not invalidate the proceedings nor leave the location of the road uncertain.

2. The statute, subdivision 2, section 41, provides that a notice containing the petition and stating the time and place at which it will be presented to the judge shall be served on each county concerned in the same manner as a summons in a civil action, and that proof of such service shall be filed with the clerk before the hearing. The proof of service filed shows that this notice was served on the county auditor of each county on January 4, 1922. Relators contend that this proof of service is fatally defective because it fails to show that the service was made during or within ten days preceding a session of the county board as required by section 672, G. S. 1913. This provision was enacted in early days and still remains among the laws. But in the revision of the laws made in 1905, the section (G. S. 1913, § 7733), governing the matter of serving a summons on municipalities which previously had contained nothing relating to counties, was amended and now provides:

‘Service of a summons upon municipal or quasi municipal corporations shall be made by delivering a copy thereof as follows:

‘1. * * *

‘2. If against a county, to the chairman of the county board or to the county auditor.’

This statute contains no provision or restriction as to the time when such service may be made, and we are of opinion that the Legislature, by inserting therein the provision for service on counties and omitting therefrom the requirement that such service be made during or within ten days preceding a session of the county board, intended that the service of a summons on a county as therein provided should be sufficient to confer jurisdiction, although not made during or within ten days before a session of the board. State ex rel. v. District Court, 113 Minn. 298, 129 N. W. 514;State ex rel. v. District Court, 107 Minn. 437, 120 N. W. 894.

3. Relators contend that the court was without authority to confirm the report of the...