Thomas v. The Board of County Commissioners of The County of Ellis

• Decision Date: 07 February 1914
• Docket Number: 18,106
• Citation: 91 Kan. 443,138 P. 409
• Parties: ANNA M. THOMAS, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ELLIS, Appellee
• Court: Kansas Supreme Court

138 P. 409

91 Kan. 443

ANNA M. THOMAS, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ELLIS, Appellee

No. 18,106

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Ellis district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COUNTIES IMMUNE FROM LIABILITY FOR DAMAGES. Counties are mere auxiliary agencies of the state government, and, like the state, are immune from liability on account of damages occasioned by the manner in which they exercise or fail to exercise their governmental powers.

2. ILLEGAL HIGHWAY--Negligence of County Officers--Damages Must be Authorized by Statute. In the absence of some statutory provision, a county is not liable to a landowner for damages for the use of land attempted to be appropriated for a public highway, the proceedings to establish which are subsequently held to be illegal and void.

J. P Shutts, of Hays, for the appellant.

J. H. Simminger, county attorney, for the appellee.

OPINION

PORTER, J.:

In the year 1902, the board of county commissioners of Ellis county attempted to lay out and establish a public road across appellant's land, and for that purpose condemned a tract consisting of about one and one-half acres. The road was maintained as a public highway from that time until June, 1908, when, by a judgment of the district court, the proceedings for establishing the road were declared illegal and void. Sometime thereafter the plaintiff presented to the board of county commissioners a claim for damages, amounting in the aggregate to $ 4200. The claim was disallowed; neither the date when it was filed nor when it was disallowed is shown by the record. On the 28th day of April, 1909, she appealed to the district court. In April, 1910, the case was submitted to the court on an agreed statement of facts, and judgment was rendered in favor of the defendant and against the plaintiff for costs. On February 29, 1912, the case was appealed to this court. In March, 1913, it was dismissed, and afterwards reinstated.

The case is perhaps more noteworthy by reason of its chronological history than because of any question of law or fact involved. It is part of a series of litigation which considered as a whole, presents a striking illustration of the fact that it is still possible, under our code, for court proceedings to be delayed. "The law's delay" had passed into a proverb in Shakespeare's time; and the supposed existence of the evil is still employed as a foundation for more or less indiscriminate criticism of courts. Notwithstanding the fact that the final chapter in this litigation is not written until almost twelve years have elapsed since the proceedings were taken for establishing the road, our decision is handed down one month from the time the case was submitted here. Unreasonable delays are possible under almost any legal procedure, but our experience is that when they occur the fault is seldom that of the courts. In the ordinary course it would be possible under our code to obtain a final determination of the question of the validity of proceedings to establish a road within a few months from the time the proceedings were begun; and even if appealed to this court a decision would usually be rendered within less than a year thereafter. We are not advised from the record what occasioned the delay of more than six years in having the illegality of the proceedings...