Sullivan v. Robbins
| Decision Date | 11 October 1899 |
| Citation | 80 N.W. 340,109 Iowa 235 |
| Court | Iowa Supreme Court |
| Parties | SULLIVAN v. ROBBINS. |
OPINION TEXT STARTS HERE
Appeal from district court, Mahaska county; D. Ryan, Judge.
Action of mandamus to compel defendant, who is a road supervisor, to remove obstructions from a certain highway, and to open the road to its full width. The trial court sustained a demurrer to plaintiff's petition, and he appeals. Affirmed.Daniel Davis, for appellant.
Bolton & Bolton, for appellee.
The petition and amendment thereto disclose that a certain highway in Mahaska county, which was duly established more than 30 years ago, is and was so obstructed as to be impassable, and that defendant was duly notified before the commencement of the action to remove the said obstructions, but that he had failed and neglected to do so. It also appears that the board of supervisors, on a petition signed by plaintiff and others, vacated a part of the road which plaintiff says is obstructed, and reduced the remainder from 50 to 30 feet in width. The petition alleges that plaintiff's signature to the petition asking for the vacation and reduction of the road was obtained through fraud, and that the action of the board was illegal, (1) because no road can be reduced to less than 40 feet in width; (2) because no petition or bond was filed with the county auditor, and no commissioner was appointed to examine into the expediency of the proposed vacation, and no report was ever filed with the county auditor; (3) because no notice was served upon adjoining landowners; and (4) because no notice of the hearing was given to any person whatever. The demurrer was based on several grounds, some of which were that this is a collateral attack upon the action of the board; that the proper remedy is by certiorari, and not by mandamus; and that the board of supervisors have exclusive jurisdiction of the highways in their county.
It will thus be seen that this is an attack upon the action of the board in vacating the highway. The statute provides that boards of supervisors have general supervision of the roads in their counties, with power to establish, vacate, and change the same. It appears that a petition asking for the vacation of the road was duly presented to the board, and that it granted the petitioners' request. True, no bond was filed, but that fact will not invalidate the proceedings. Woolsey v. Board, 32 Iowa, 130.
It also appears that a part of the road was altered so as to be less than 40 feet in width, but that is not such an irregularity as can be taken advantage of in a collateral proceeding. Knowles v. City of Muscatine, 20 Iowa, 248.
That plaintiff was induced to sign the petition for vacation through fraud is no reason for declaring the action of the board void. Indeed, the only fraud alleged is that he was misled into signing the petition because he believed it pertained to some other road. Surely this is not a ground for collateral attack upon the action of the board.
It is true that no commissioner was appointed to pass upon the expediency of the proposed vacation, but as the plaintiff and all parties in interest, so far as disclosed by this record, signed the petition, they are in no position to complain. A commissioner was appointed to make the survey of the new road established in lieu of the old, and he made a...
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