State v. Weimer
| Decision Date | 22 July 1884 |
| Citation | 20 N.W. 171,64 Iowa 243 |
| Parties | THE STATE v. WEIMER |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.
DEFENDANT was convicted of obstructing a highway, and now appeals to this court.
REVERSED.
H Lohmar and Miller & Son, for appellant.
Smith McPherson, Attorney-general, for the State.
I.
The only evidence introduced by the state to prove that the road for the obstructing of which defendant was indicted, is a lawfully established highway, consists of the commissioners' road record, a book in the custody of the auditor of the county, and an official copy of the original plat of the road. There was evidence tending to show that the road indicated by these records had been opened, and afterwards obstructed by defendant.
The road record fails to show that the notice required by the statute, Code, § 936, had been given, and there is no recitation or averment therein tending to show that any notice was given to defendant upon whose land, it appears to be claimed, the road was located. Nor does the record show that defendant appeared in the proceeding, and thus waived service of notice. It is recited that the road was "by consent of attorneys of parties herein, and request of board declared to be forty feet in width." But it is not shown by the record, nor by evidence aliunde, if, indeed, it were competent, which we do not determine, that defendant appeared to the proceedings, or had notice thereof at any time, or that he was a party to the case before the supervisors. The defendant proposed to prove that, by an agreement between the board of supervisors and himself, the road was to be established as of the width of thirty-three feet. But, upon the objection of the state, this evidence was rejected. There was no evidence of any character tending to show that defendant was served with the notice required by law, or waived service thereof.
II. This court has held in a similar case that, as the petition and notice required by law in proceedings to establish roads are necessary to confer jurisdiction upon the supervisors in road cases, they must be shown by the record and that, in the absence of such showing, no presumption will obtain in support of the jurisdiction of the supervisors. The State v. Berry, 12 Iowa 58. There being no evidence that the supervisors acquired jurisdiction to establish the road in this case, and no presumption thereof...
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