Yengel v. Allen

• Decision Date: 12 March 1917
• Docket Number: No. 31713.,31713.
• Citation: 179 Iowa 633,161 N.W. 631
• Parties: YENGEL ET AL. v. ALLEN ET AL.
• Court: Iowa Supreme Court

179 Iowa 633

161 N.W. 631

YENGEL ET AL.

v.ALLEN ET AL.

No. 31713.

Supreme Court of Iowa.

March 12, 1917.

Appeal from District Court, Lucas County; C. W. Vermillion, Judge.

Suit to enjoin further action on the part of defendants in the establishment of certain highways. The petition was dismissed, and plaintiffs appeal. Modified and affirmed.Stuart & Stuart and J. W. Kridelbaugh, all of Chariton, for appellants.

Hickman & Wells, of Chariton, for appellees.

LADD, J.

The orders to which exception is taken are those sustaining a demurrer to the petition as amended and a motion to dissolve a temporary writ of injunction theretofore issued. Both depend on the validity of proceedings to establish two highways. These proceedings are fully stated in the petition, and for convenience those relating to each road will be separately considered. On July 13, 1914, Samuel Neptune and 49 others, residents of the county, filed a petition and the required bond with the county auditor, praying that “a highway 40 feet wide, commencing at the northwest corner of the southwest quarter of the northwest quarter, on the section line between sections 5 and 6, in township 71, range 21, and running thence due north on section line 1 1/4 miles, intersecting road No. 60 on said section line between sections 29 and 30, in township 72, range 21, be established.” Another petition signed by Neptune and 27 others for a highway 60 feet wide at the same location and saying it was a substitute for that above was filed with the county auditor July 18th following. One King was duly appointed commissioner to view the proposed highway on July 13th, and filed his report July 20th saying that he deemed “it advisable to open said road as described in petition,” and recommended that:

(1) “The petitioners put in concrete subcattle pass for Mr. Elijah Copeland not less than 20 feet wide;” and (2) “the board of supervisors change the channel of Chariton river in section 31 in Lincoln township, as indicated on plat filed herewith, and that petitioners perform all the labors in making the change in said stream.”

[1] Notice was given as required by law save that personal service on Elijah Copeland, James N. Field, and Jacob Yengel is alleged to have been one day late. As each filed claims for damages, this defect was waived. Gilcrest et al. v. Des Moines, 157 Iowa, 525, 137 N. W. 1072. Final hearing was postponed from time to time until April 6, 1914, when the following proceedings were had by the board of supervisors:

“A motion was made by W. E. Allen and seconded by W. A. Elliott to accept the road as petitioned for by Samuel Neptune and others for a 60-foot highway as petitioned for, petitioners to pay all damages as per appraisement, to change the creek so that there will be but one bridge across Chariton river coming into Chariton on said road, said proposed road to be graded in good traveling condition about the same as the Air-Tight or New York road, also with the understanding that the petitioners will present a petition to vacate a road commencing at the northeast corner of section 31, township 72, range 21, Lucas county, Iowa, running west and southwest to north line of the southeast quarter of said section 31, township 72, range 21, and that a highway 60 feet wide, commencing at the last-mentioned point and running thence east and southeast 65 rods, more or less, to intersect the proposed highway along the east line of section 31, township 72, range 21, be established, all conditions and requirements as above stated to be complied with on or before the first Monday in June, 1916, was voted on as follows: Yea--W. E. Allen and W. A. Elliott. Nay--Fred J. Yengel.”

In addition to the foregoing facts the petition as amended alleged that the proposed road “passes through timber, and that there are no markings and no trees have been blazed; that the section lines between sections 5 and 6 and the lines between sections 31 and 32 do not meet and are on a physical line between said sections, and there is no showing as to where the proposed road shall lay at the point where the section lines do not meet”; that irreparable injury might be done by petitioners changing the channel of the river, cutting down trees, and then abandoning the enterprise; that the proposed change in the Chariton river cannot be made in a proceeding to establish a highway; that jurisdiction was not conferred, for that the report of the commissioner omitted to state the number and cost of bridges necessarily to be constructed; that he had not laid out the road or marked or surveyed the same or placed stakes or posts as required; that the appraisers to assess damages could not well do so because of the highway not being definitely located; that the resolution of the board purporting to establish the highway was illegal, in that the defendant required petitioners to perform labor in an unknown amount in changing the course of the river and in grading the highway in the indefinite manner and in requiring the petitioners to file a petition for the establishment of another highway; and that the board of supervisors were without authorityin exacting such conditions, and especially in extending the time for their performance until June, 1916. They allege that the defendants, being the petitioners for the highway and members of the board of supervisors, are still persisting in their efforts to establish the highway under the proceedings which as alleged are illegal. The north half mile of the proposed highway lies between the land owned by Copeland and Yengel, and the Chariton river passes from Copeland's land through the section line into the land of Yengel, then bends and flows back through the land of Copeland. It is proposed to excavate a ditch in Copeland's land from one point in the stream to another, and thus prevent the water from flowing over into Yengel's land, and thereby, through grading in the river beds, avoid the necessity of constructing two bridges. The next half mile of the proposed highway to the south would be through Copeland's land, and the Chariton river also passes across this portion of the line, and at that point a bridge would have to be constructed.

[2] I. The first contention urged is that the board of supervisors did not acquire jurisdiction to establish the highway proposed, for that the commissioner to view the same did not comply with section 1489 of the Code, exacting that:

“If the precise location of the road cannot otherwise be given, he must cause the line thereof to be surveyed and plainly marked out.”

As the highway was established on the section line and was described as extending 1 1/4 miles south of the section line between sections 29 and 30, the precise location was definitely fixed. It was to be 60 feet in width, and therefore the boundaries would be 30 feet on each side of that line.

If, as is alleged, the lines do not meet at the southeast corner of section 30, it is to be inferred that these are connected by an east and west highway previously established, or, if not that, as that highway in question was to be continuous, the short connection between the ends is to be established on the east and west section line. This being so, the commissioner's report was...