Lawrence v. Williams

Weaver, J. On September 4, 1905, a petition was presented to the board of supervisors of. Montgomery County asking for the establishment of a public road fifty feet in width along the south side of section 33, township 11, range 34. A- commissioner was appointed to view the route of the proposed road, and, having reported adversely, no further action appears to have been taken upon said petition. On January 1, 1906, another petition was presented to the board for the establishment of a road forty-five feet wide over the same route. The commissioner recommended the establishment of the road, but the board refused to enter the order and denied the petition. Thereafter on June 22, 1906, another petition was filed for the establishment of a road of forty-five feet in width over the same route described in the previous petition. Some of the petitioners appear as such in all of the three several proceedings, while many others are signers of the last petition only. The commissioner appointed upon the last petition reported favorably thereon, and recommended the establishment of the road. The plaintiff, who is an adjacent landowner, thereupon filed what he entitled a “claim for damages,” which he would suffer if the road be established, though it wholly fails to suggest or claim the sum or amount required to compensate him for the alleged injury to his premises. He also objected to the establish 673 ment of the road on the ground that the matter had been determined by the action taken upon the prior petitions, and that the board was without authority or jurisdiction to entertain another petition therefor. The objection was overruled, and the board proceeded to grant the petition and order the establishment of the road. To annul this order plaintiff sued out a writ of certiorari from the district court on the ground that, for the reason hereinbefore stated, the action of the board of supervisors was illegal and void. The defendants demurred to the petition for the writ on the ground that the order of the board in one proceeding, refusing to establish a road, is not a bar to a subsequent proceeding for such establishment, nor does it operate to deprive the board of the authority to entertain such subsequent proceedings. The demurrer was sustained and writ and petition dismissed at plaintiff’s costs. The plaintiff appeals. It is true as argued by the appellant that under Code, section 1488, as interpreted by this court in Hupert v. Anderson, 35 Iowa, 578, the adverse report of the commissioner worked a dismissal of the proceeding, and the hoard could not override the report and order the establishment of the road. Nor can a new commissioner be appointed upon the same petition in the hope or endeavor to obtain a more favorable report. Cook v. Trigg, 52 Iowa, 709; Morgan v. Miller, 59 Iowa, 481. But, the lack of jurisdiction in the board of supervisors to proceed with the establishment of a road after an adverse report by the commissioner being admitted, it by no means follows that it is also without jurisdiction to entertain an entirely new proceeding instituted by the filing of a new petition "for the establishment of a road on the same line or route contemplated in the first petition. That the board’s jurisdiction is not exhausted by a single proceeding which has been fully disposed of is distinctly held in Pagels v. Oaks, 64 Iowa, 201, The same rule is plainly suggested in 674 Devoe v. Smeltzer, 86 Iowa, 385. In the very nature of things this must be so. The power to establish roads is a legislative power, and, while under our statute it is called into action by the petition of individual citizens who ordinarily derive some real or supposed benefit from such road, the decision to order or refuse the establishment is controlled by public considerations, and is not an adjudication which forever forecloses further consideration of the subject. A road established by the board of supervisors this month or this year may by the same authority be vacated or changed next month or next year, or whenever in the judgment of the board public interests require or justify it. If the granting of a petition is. not so final or irrevocable as to prevent a future change or vacation, then assuredly a denial of the petition is equally insufficient to prevent a future establishment of the road if upon another hearing in another and independent proceeding the board shall become convinced that public interests require it. It would be a very unfortunate rule if the failure of one road petition should be held a final adjudication for all time. Circumstances change with the' years, and a road which at one time would be of but little public use may become a matter of great convenience or necessity, and the board to which authority in the premises is granted should be left free to exercise its discretion according to the conditions as they appear when the application is presented. It may be that the Legislature could have wisely provided a reasonable period within which after the. rejection of one petition for a road another of the same import should not be entertained. But it has not- done so, and it is not within the province of the court to enact such a limit. The trial court was right in sustaining the demurrer, and the judgment appealed from is therefore affirmed.