Semerad v. Dunn County
| Decision Date | 21 December 1916 |
| Citation | 160 N.W. 855,35 N.D. 437 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Dunn County, W. C. Crawford, J.
Action to restrain the construction and maintenance of a highway.
Judgment for defendants. Plaintiff appeals.
Reversed.
Reversed and remanded.
W. F Blume, for appellant.
In establishing highways the provisions as to time and notice must be strictly observed. 37 Cyc. 66 and cases cited.
The record of the proceedings must show that a proper notice of the meeting of the commissioners was duly served, published or posted; otherwise the proceedings will be void.
The fact of service, and not the proof of it, gives jurisdiction. Krenik v. Cordova, 95 Minn. 372, 104 N.W. 130; Thompson v. Berlin, 87 Minn. 7, 91 N.W. 25.
Notices shall be served in the manner designated by law, and proof of service shall be made in the prescribed way. State Clark, Prosecutor, v. Elizabeth, 32 N.J.L. 357; Babb v. Carver, 7 Wis. 124; Adams v. Clarksburg, 23 W.Va. 203; Hemingway v. Chicago, 60 Ill. 324; Coquard v. Boehmer, 81 Mich. 445, 45 N.W. 996; Anderson v. San Francisco, 92 Minn. 57, 99 N.W. 420.
In a proceeding to establish a highway the owner or occupant of land affected must be made a party respondent. Ft. Wayne v. Ft. Wayne & J. R. Co. 149 Ind. 25, 48 N.E. 342; Sherman v. Peterson, 91 Mich. 480, 51 N.W. 1122; Lyle v. Chicago, M. & St. P. R. Co. 55 Minn. 223, 56 N.W 820.
To justify the establishment of a highway by local officers, there must be statutory authority therefor, and such statutes, in so far as they authorize the taking of private property for public use, will be strictly construed. 37 Cyc. 53; Curran v. Shattuck, 24 Cal. 427; Funderburk v. Spencler, 234 Ill. 574, 85 N.E. 193; Hyslop v. Finch, 99 Ill. 171.
Failure to give notice will invalidate the proceedings. Notice, as required, is jurisdictional. Audubon v. Hand, 231 Ill. 334, 83 N.E. 196; Highway Comrs. v. Smith, 217 Ill. 250, 75 N.E. 396; People ex rel. Willis v. Smith, 7 Hun, 17; Re Greenwood Twp. Road, 23 Pa. Co. Ct. 85; McIntire v. Lucker, 77 Tex. 259, 13 S.W. 1027; La Farrier v. Hardy, 66 Vt. 200, 28 A. 1030; Austin v. Allen, 6 Wis. 134.
It is essential to the validity of these proceedings that the tribunal before which they are prosecuted should have jurisdiction both of the subject-matter and of the persons of those whose land is sought to be appropriated. People ex rel. Atty. Gen. v. Brown, 23 Colo. 425, 48 P. 661; State, Loucheim, Prosecutor, v. Hemsley, 59 N.J.L. 149, 35 A. 795; Thatcher v. Powell, 6 Wheat. 119, 5 L.Ed. 221; Dyckman v. New York, 5 N.Y. 434; Smith v. Rice, 11 Mass. 507; Schell v. Leland, 45 Mo. 289.
Jurisdiction of the subject-matter and of the parties is required and must affirmatively appear on the face of the record of the proceedings. Commissioners Court v. Thompson, 18 Ala. 694; Highway Comrs. v. People, 2 Ill.App. 24; Crossley v. O'Brien, 24 Ind. 325, 87 Am. Dec. 329; Wabaunsee County v. Muhlenbacker, 18 Kan. 129; People ex rel. Mead v. Highway Comrs. 16 Mich. 63; Whitely v. Platte County, 73 Mo. 30; Miller v. Brown, 56 N.Y. 386.
The description must be sufficiently plain, clear, and accurate that it will be understood by persons of ordinary intelligence, and such as to enable a surveyor to locate it. Elliott, Roads & Streets, 350.
The character of the place of beginning and ending of the proposed highway has a bearing on the question of the public necessity, utility, and convenience of the highway. The notice must point out these things. 37 Cyc. 46; Behrens v. Highway Comrs. 169 Ill. 558, 48 N.E. 578.
The land ordered taken or affected must be described with certainty, and the survey must be made a part of the order. Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899; State ex rel. Milwaukee, L. S. & W. R. Co. v. O'Connor, 78 Wis. 282, 47 N.W. 433; Beck v. Biggers, 66 Ark. 292, 50 S.W. 514; Phillips v. Tucker, 3 Met. (Ky.) 69; State, Taylor, Prosecutor, v. Hulick, 37 N.J.L. 70; Re O'Hara Twp. Road, 152 Pa. 319, 25 A. 602; Re Road, 17 Pa. Co. Ct. 39; Rose v. Garrett, 91 Mo. 65, 3 S.W. 828.
In condemnation proceedings there should be such a description that the property to be taken may be ascertained from the record. McDonald v. Payne, 114 Ind. 359, 16 N.E. 795; Rud v. Pope County, 66 Minn. 358, 68 N.W. 1062, 69 N.W. 886.
The burden of proving the legal establishment and existence of a public highway is on the public authorities or other parties who allege its existence. 37 Cyc. 154 and cases cited; Dingwall v. Weld County, 19 Colo. 415, 36 P. 148; Van Wanning v. Deeter, 78 Neb. 284, 110 N.W. 703, 112 N.W. 902; Bare v. Williams, 101 Va. 800, 45 S.E. 331.
The survey must not vary from the location ordered. Phipps v. State, 7 Blackf. 513; Butler v. Barr, 18 Mo. 357; Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899.
The statutes must be strictly complied with as to filing the order. Comp. Laws 1913, § 1927; Elliott, Roads & Streets, 402; Prescott v. Beyer, 34 Minn. 493, 26 N.W. 732; Highway Comrs. v. Barry, 66 Ill. 496; Dolphin v. Pedley, 27 Wis. 469; Cole v. Van Keuren, 6 Thomp. & C. 480; Burns v. Multnomah R. Co. 8 Sawy. 543, 15 F. 177; 15 Am. & Eng. Enc. Law, 2d ed. 385; Poole v. Breese, 114 Ill. 594, 3 N.E. 714; Wright v. Highway Comrs. 145 Ill. 48, 33 N.E. 876.
The Constitution requires that the question of compensation shall be determined by an impartial tribunal. Nor is it competent for the legislature to provide that the compensation may be fixed by the corporation asking to condemn the land, nor that it be fixed by an agent or officer of such corporation. Elliott, Roads & Streets, 301, and cases cited; Chase v. Evanston, 172 Ill. 403, 50 N.E. 241; Cunningham v. Campbell, 33 Ga. 625; Kramer v. Cleveland & P. R. Co. 5 Ohio St. 140; Powers v. Bears, 12 Wis. 214, 78 Am. Dec. 733.
Thos. G. Johnson, for respondents.
Where there is an award of damages for taking property for public highway purposes, and where by error of the county auditor or clerk the description is erroneous as to the quarter section, this fact would not invalidate the proceedings. 23 Cyc. 854.
Where a tribunal is invested by law with the original jurisdiction of a subject, like the laying out of a public highway, its decisions are not necessarily void, although the decision on the question of the right to proceed may be erroneous. Elliott, Roads & Streets, § 300.
If not void, but merely voidable, they cannot be attacked in a collateral proceeding. Elliott, Roads & Streets, § 378.
A party interested and who should have received notice of the meeting, if personally present, is estopped to question the validity of the proceedings, because no notice was served upon him. 37 Cyc. 97, 130, and notes 15 and 17.
Such a party has had his day in court. Elliott, Roads & Streets, 2d ed. § 379.
Where jurisdiction has once been acquired, a collateral attack cannot succeed. Davenport Mut. Sav. Fund & L. Asso. v. Schmidt, 15 Iowa 213; 37 Cyc. 136.
The time of making the survey is not material. Ekwortzell v. Blue Grass Twp. 28 N.D. 20, 147 N.W. 726; Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899; 37 Cyc. 75.
The statute requiring the order to be filed within five days is merely directory. The order does not become void until after twenty days. Wayne v. Caldwell, 1 S.D. 483, 36 Am. St. Rep. 750, 47 N.W. 547.
Appellant's failure to attack the order in reasonable time after it was made and filed constitutes such laches as to bar him from contesting or disputing same at this late date. 37 Cyc. 130.
OPINIONStatement of facts by BRUCE, J.
This is an action for a permanent injunction restraining the county of Dunn, its board of county commissioners, and all of its other officers from entering upon plaintiff's land for the purpose of constructing or maintaining a highway, and from passing over and across and using same.
The appeal is from an order sustaining a demurrer to the complaint and from the judgment entered thereon.
The complaint in substance alleges that on March the 15th, 1909, a petition was presented to the board of county commissioners and was posted by copies in three places; that on March the 10th, 1909, notice of a meeting to hear said petition was served and also posted in three places; that on May 18th, 1909, the commissioners held a meeting and granted the petition and determined to lay out a highway, describing the same in substantial conformity with the description given in said petition as follows, to wit: "Beginning between sections 31 and 32-142-97, then south and thence east between sections 5 and 32, and sections 4 and 33 and 3 and 34 east, then south between sections 2 and 3-141-97, then on the northeast corner of section 10-141-97, then nearly one-half mile south, then back to section line between 10 and 11-141-97, then between sections 14 and 15, sections 23 and 22 south, then each between sections 23 and 26, then diagonally across the east half of the northwest quarter and then straight east between sections 25 and 30 east, twp. 141, range 97 and 96; that said commissioners then and there made an order therein which is as follows: 'It is therefore ordered and determined that a road be, and the same is, hereby ordered and established according to the description last aforesaid, and it is hereby declared to be a public highway 4 rods wide, the said description above given being the center of said road;' that all of the foregoing is more fully disclosed in a certified copy of the order and other proceedings therein and the whole thereof marked 'exhibit A' attached to and made a part of this complaint."
The complaint then alleged that on the 18th day of May, 1909 said commissioners made an...
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