State ex rel. Union Pac. R. Co. v. Bd. of Com'rs of Colfax Cnty.

Decision Date17 March 1897
PartiesSTATE EX REL. UNION PAC. R. CO. v. BOARD OF COM'RS OF COLFAX COUNTY ET AL.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

In a proceeding to establish a drainage ditch under article 1, c. 89, Comp. St., one of the jurisdictional facts which the county board is required to find and enter upon its journal is whether the line described in the petition for the proposed ditch is the best route for the improvement.

Error to district court, Colfax county; Sullivan, Judge.

Petition by the state, on the relation of the Union Pacific Railroad Company, for a writ of mandamus against the board of county commissioners of Colfax county and others. Judgment for defendants, and plaintiff brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Geo. H. Thomas and E. T. Hodsdon, for defendants in error.

NORVAL, J.

The Union Pacific Railway Company and others presented a petition to the board of county commissioners of Colfax county on April 25, 1892, under article 1, c. 89, Comp. St., praying the location and construction of a drainage ditch over and across the lands of the petitioners. The commissioners entered the following orders on their record relating to said petition:

“Schuyler, Neb., April 26, 1892. The board of county commissioners met pursuant to adjournment. All members present, and clerk. The clerk having delivered a copy of said petition, as provided by statute, in the matter of location, construction, etc., of ditches, to the board of commissioners, they thereupon took to their assistance E. E. Greenman, county surveyor, and at once proceeded to view the line of the proposed improvement; and after having been out all day viewing said proposed improvement, and having returned late, the board adjourned to meet next morning at 9 o'clock a. m.”

“Schuyler, Neb., April 27, 1892. The board of commissioners met pursuant to adjournment. All the members present, and clerk. In the matter of the location, construction, etc., of the ditches, the board made the following report: Whereas, the location, construction, and maintenance of the ditch, drain, and excavations therein referred to are necessary to drain the land described in a copy of the petition attached to this report, and heretofore recorded, do find, determine, and report that said improvement is necessary and will be conducive to the public good, health, convenience, and welfare, and beneficial to certain lands and property; and we do hereby order the county clerk to enter this, our report, upon the journal. Dated this 27th day of April, 1892. William McRoe, G. Folken, James Loogley, the Board of County Commissioners of Colfax Co.

Subsequently, at an adjourned meeting held on May 9, 1892, the board made and caused to be entered on its journal an order directing the county surveyor to go upon the line described in the petition, and survey, level, and stake the same, and make a report, profile, and plat thereof, and do and perform the other matters and things required by sections 7, 8, and 9 of said article and chapter. The surveyor complied with said order, and filed his report with the county clerk, on June 27, 1892. A date was fixed for a hearing on said report, and notice thereof was given, in accordance with section 10 of said article and chapter. Claims for damages on account of said ditch were duly filed to the amount of $9,093, and at the time so fixed for the hearing the county commissioners convened in session, and then determined that the requisite notice had been given of the hearing and the report; and after listening to the argument of counsel for certain persons who had filed exceptions and objections against the proposed ditch, the board adjourned to meet the next morning, at which time it made and caused to be entered of record the following: “Schuyler, Nebraska, August 9, 1892. The board of county commissioners met pursuant to adjournment. Present, full board, and clerk. In the matter of the petition of the Union Pacific Railway Company and others for the opening of drainage ditches, filed on the 25th day of April, 1892, and set down for hearing on the 26th day of July, 1892, and continued to this day, came on for hearing, and after hearing testimony and argument of counsel, and after being fully advised in the premises, the board finds that the ditches described...

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7 cases
  • Dodge Cnty. v. Acom
    • United States
    • Nebraska Supreme Court
    • 20 Febrero 1901
  • Oliver v. Monona Cnty.
    • United States
    • Iowa Supreme Court
    • 16 Mayo 1902
  • Oliver v. Monona County
    • United States
    • Iowa Supreme Court
    • 16 Mayo 1902
    ... ... 795, 19 N.E. 184); Hackett v ... State, 113 Ind. 532 (15 N.E. 799). Mere irregularities ... Board of ... Commissioners of Colfax" County, 51 Neb. 28 (70 N.W ...         \xC2" ... ...
  • County of Dodge v. Acom
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    ... ... Cheney, 22 Neb. 437, 35 N.W. 211; State v. Colfax ... County, 51 Neb. 28. An observance ... ...
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