APPEAL
from the district court of Lancaster county. Heard below
before HALL, J.
AFFIRMED.
N. Z
Snell and Beeson & Root, for appellants:
The
county commissioners have exclusive original jurisdiction in
laying out and establishing roads. In this class of cases the
board acts judicially. It is discretionary with it to grant
or refuse the relief asked. The only way its final orders in
such cases can be attacked is by review. (State v
Clary, 25 Neb. 403; State v. Palmer, 18 Neb. 644.)
There
being an adequate remedy at law, chancery will not interfere.
(Brown v. Otoe County, 6 Neb. 111; Clark v
Dayton, 6 Neb. 193; Ellis v. Karl, 7 Neb. 381.)
The
proper place to raise questions as to the propriety or
impropriety of establishing the proposed road is before the
commissioners themselves. The remedy of the party aggrieved
by the decision is by a direct proceeding to review in the
district court. (Poyer v. Village of Des Plaines,
123 Ill. 111; Wallack v. Society, 67 N.Y. 23; 1
High, Injunctions [2d ed.], secs. 29, 88; 2 High, Injunctions
[2d ed.], secs. 1242, 1244, 1257, 1258; West v. Mayor of
New York, 10 Paige [N. Y.], 539.)
The
sections of chapter 78, Compiled Statutes, providing for the
establishment of roads, are not unconstitutional as allowing
private property to be taken for private use. The law is
valid. (Sherman v. Buick, 32 Cal. 241; Allen v.
Stevens, 5 Dutch. [N. J.], 509; In re Hickman, 4
Harring. [Del.], 580; Harvey v. Thomas, 10
Watts [Pa.], 65; Pocopson Road, 16 Pa. 15; Killbuck Private
Road, 77 Pa. 39; Waddell's Appeal, 84 Pa. 90; Metcalf
v. Bingham, 3 N. H., 461; Proctor v. Andover,
42 N. H., 351; Brewer v. Bowman, 9 Ga., 37;
Robinson v. Swope, 12 Bush [Ky.], 21; McCauley
v. Dunlap, 4 B. Mon. [Ky.], 57; Denham v. County
Commissioners of Bristol, 108 Mass. 202; Jones v.
Andover, 6 Pick. [Mass.], 59; Commonwealth v.
Hubbard, 24 Pick. [Mass.], 98; Ferris v.
Bramble, 5 Ohio St. 109; Shaver v. Starrett, 4
Ohio St. 494; Bankhead v. Brown, 25 Iowa 540.)
Pound & Burr, contra:
Commissioners
acting under color of law and proceeding without any legal
authority to permanently appropriate the land of a private
citizen may be enjoined from proceeding with such
appropriation. (2 High, Injunctions, secs. 1308, 1309, 1318;
Beatty v. Beethe, 23 Neb. 210; Follmer v.
Nuckolls County, 6 Neb. 204; McArthur v. Kelly, 5 O.
, 140; Anderson v. Hamilton County, 12 Ohio St.
635; Mohawk H. R. Co. v. Artcher, 6 Paige [N. Y.],
83; Wild v. Deig, 43 Ind. 455; Witham v. Osburn,
4 Ore., 318; Green v. Green, 34 Ill. 320;
Green v. Oakes, 17 Ill. 249; Lumsden v. City of
Milwaukee, 8 Wis. 239; Waddell's Appeal, 84 Pa. 90;
Coster v. Tide Water Co., 18 N.J.Eq. 55.)
It is
well established that when county commissioners or other
public officers are proceeding in excess of their powers, or
in the absence of power or jurisdiction, and their acts are
likely to result in irreparable injury to property owners, an
injunction is the appropriate relief. (Armstrong v. City
of St. Louis, 3 Mo. App., 151; Town of Covington v.
Nelson, 35 Ind. 532; Conrad v. Smith, 32 Mich.
429; Carter v. City of Chicago, 57 Ill. 283;
Dinwiddie v. President and Trustees of Rushville, 37
Ind. 66; Mayor and City Council of Baltimore v.
Gill, 31 Md. 375; Lumsden v. City of Milwaukee,
8 Wis. 239; Follmer v. Nuckolls County, 6 Neb. 204;
Vanderlip v. City of Grand Rapids, 41 N.W. [Mich.],
677; Board of Commissioners of Benton County v. Templeton, 51
Ind. 266.)
When
there is some legal remedy, but it is clearly inadequate to
give the relief to which the plaintiff is entitled, he may
have an injunction. (Watson v. Sutherland, 5 Wall. [U.
S.], 74; Bishop v. Moorman, 98 Ind. 1;
Keene v. Bristol, 26 Pa. 46; 3 Pomeroy, Equity, sec.
1399; Roy v. Atchison & N. R. Co., 4 Neb. 439; Omaha & N. W. R. Co. v. Menk, 4 Neb. 21.)
A
constitutional provision that "the property of no person
shall be taken or damaged for public use without just
compensation" should be construed as equivalent to a
declaration that private property, without the consent of the
owner, shall be taken only for public use, and this only upon
a just compensation. Such a provision prohibits private
property from being taken for private use. (Sedgwick, Stats. & Const. Law [2d ed.], pp. 447-450; In re Albany Street,
New York, 11 Wend. [N. Y.], 149; Bloodgood v. Mohawk & H. R. Co., 18 Wend. [N. Y.], 9; Reeves v.
Treasurer of Wood County, 8 Ohio St. 346; McQuillen
v. Hatton, 42 Ohio St. 204; Jenal v. Green Island
Draining Co., 12 Neb. 166; Forney v. Fremont, E. & M. V. R. Co., 23 Neb. 468; Osborn v. Hart, 24
Wis. 90; In re Application of Eureka Basin Warehouse & Mfg. Co., 96 N.Y. 49; Anderson v. Kerns Draining
Co., 14 Ind. 199; Tyler v. Beacher, 44 Vt. 648;
Consolidated Channel Co. v. Central P. R. Co., 51
Cal. 269; Beekman v. Saratoga S. R. Co., 3 Paige Ch. [N. Y.],
73.)
Statutes
authorizing private roads or right of way to be laid out
across the lands of unwilling persons by the exercise of the
right of eminent domain are held, in states having a
constitutional provision like our own, unconstitutional and
void. (Bankhead v. Brown, 25 Iowa 540; Nesbitt
v. Trumbo, 39 Ill. 110; Wild v. Deig, 43 Ind.
455; Taylor v. Porter, 4 Hill [N. Y.], 140; In
re Albany Street, New York, 11 Wend. [N. Y.], 149;
Dickey v. Tennison, 27 Mo. 373; Osborn v.
Hart, 24 Wis. 89; Clack v. White, 2 Swan
[Tenn.], 540; Varner v. Martin, 21 W.Va. 534;
Roberts v. Williams, 15 Ark. 43; Witham v.
Osburn, 4 Ore., 318; Sadler v. Langham, 34 Ala.
311; Crear v. Crossly, 40 Ill. 175; Stewart v.
Hartman, 46 Ind. 331; Sholl v. German Coal Co.,
118 Ill. 427; Ross v. Davis, 97 Ind. 79; Elliott,
Roads & Streets, p. 146; Lewis, Eminent Domain, sec. 167.)
As to
what is a public use is a question of law to be decided by
the courts. (McQuillen v. Hatton, 42 Ohio St. 202;
Tyler v. Beacher, 44 Vt. 648; In re Application
of Eureka Basin Warehouse & Mfg. Co. , 96 N.Y. 42;
City of Savannah v. Hancock, 91 Mo. 54; Coster v.
Tide Water Co., 18 N.J.Eq. 55.)
RAGAN, C.
Chapter
78, Compiled Statutes of 1893, provides:
"Sec
47. When the lands of any person shall be surrounded or
enclosed, or be shut out and cut off from a
public highway by the lands of any other person or persons,
who refuse to allow such person a private road to pass to or
from his or her said land, it shall be the duty of the county
board, on petition of any person whose land is so surrounded
or shut out, to appoint three disinterested freeholders of
the precinct or township, in counties under township
organization, in which the land lies, as commissioners to
view and mark out a road from land of the petitioner to the
nearest public highway, and assess the damages the person
will sustain through whose land the road will pass.
"Sec.
48. The person desiring to secure the right of way shall give
the person or persons through whose lands the road will run
at least two days' notice of such intended application,
by leaving or causing to be left a written notice at his
usual place of abode; and satisfactory evidence that such
notice has been given shall be presented to the board before
commissioners shall be appointed.
"Sec.
49. The commissioners shall, before entering upon the
discharge of their duties, take and subscribe an oath before
some judge or justice of the peace, that they are not
interested nor of kin to either of the parties interested in
the proposed road, and that they will faithfully and
impartially view and mark out said road to the greatest ease
and convenience of the parties, and as little as may be to
the injury of either, and assess the damages which will be
sustained by the party through whose land it will run.
"Sec.
50. Said commissioners shall make out a report of their
proceedings, stating particularly the course and distance of
said road, and the amount of damages assessed, which report,
together with a certificate of the oath, shall be returned to
the county commissioners and filed by the county clerk.
"Sec.
51. If the report be approved by the county board, and the
petitioner shall produce satisfactory evidence that he has
paid the damages assessed (or tendered payment, if the party refuse to receive it), and all costs attending
the proceedings, the county board shall grant an order to
said petitioner to open a road not exceeding fifteen feet in
width; and if any person or persons obstruct said road, such
person or persons shall be liable to all the penalties for
obstructing a public road; Provided, however, If
such road shall pass through any inclosure, and it shall be
required by the owner thereof, the person applying for such
road shall put up and keep at each entrance into such
inclosure a good and substantial swinging gate; Provided
further, That either party may appeal from the decision
of the county board in like manner as prescribed in case of
public roads.
"Sec.
52. Upon the establishment of the right of way, as in this
chapter provided, the same shall vest and descend as an
easement in the party and his or her heirs or assigns
forever."
The
board of county commissioners of Lancaster county, on the
petition of Owen Marshall and Aaron C. Loder, appointed three
commissioners, who viewed and marked, out a private road
through the land of one Albert Welton, and made report of
their proceedings to said board of county commissioners.
Thereupon, Welton brought this suit in the district court of
Lancaster county to enjoin Marshall and Loder, and the board
of county commissioners, from laying out and establishing on
his land the private road petitioned for. The suit is based
on the grounds that...
