Yengel v. Allen

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 coun — 635 — ty, 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 thq northwest'quarter, on the section line between Sections 5 and 6, in Township 71, Range 21, and running thence due north on section,line one and one-fourth miles, intersecting road No. 60 on said section line between Sections 29 and 30 in Township †2, 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 recommending that (1) “the petitioners put in concrete sub-cattle 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 labor in making the change in said stream.” Highways : establishment: notice: defective service: appearance: effect. 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 v. City of Des Moines, 157 Iowa 525. 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 — 636 — change the creek so that there will be but one bridge across Chariton River coining 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 of June, 1016, ivas 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 necessary 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 high — 637 — way's not being definitely located; that the resolution of the board purporting to establish the highway was illegal, in that the defendant required petitioners to perforin labor in an unknown amount in changing the course of the river and in grading the highway in an indefinite manner, and in requiring the petitioners to file a petition for the establishment of another highway; and that the board of supervisors was without authority in 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 also proposed to excavate a ditch in Copeland’s land from one point in the stream to another, and thus prevent the waior from floAving 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 highAvay to the south Avould 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. , o suiTrej^etc1*: non-neeessity. Tlie flrst contention urged is that ^'lle k°iU'd of supervisors did not acquire jurjsdiction to establish the highway proposed, for that the commissioner to A'iew the same did not comply with Section 1489 of the Code, exacting that: “If the precise location of the road cannot otheiwise bo giA-en he must cause the line thereof to be surveyed and plainly marked out.” — 638 — As the highway was established on the section line, and was described as extending one and one-fourth 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. 3. Highways: establishment: '.oration: non-joining section tionS: presump' If, as is alleged, the lines do not meet at the southeast corner of Section 30, it is . †0 pe inferred that these are connected by “ an east and west highway, previously established; or, if not, that, as the 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 not defective because of no survey’s having been made. 4. Highways : establishment: location : mile posts, stakes e.te.: non-necessity. II. Section 1490 of the Code required that mile posts “be set up at the end of every mile, and the distance marked thereon, and stakes must be set at each change of direction, on which shall be marked the bearings of the new course. Stakes must also be set at the crossings of fences and streams, and at intervals in the prairie not exceeding a quarter of a mile each; in the timber the course must be indicated by trees suitably blazed.” Plainly enough, this section has relation to that preceding, and only when a survey is necessary to indicate the precise location of the highway does this statute necessarily have application. Moreover, it has been construed to be directory, and, therefore, omission to observe its provisions did not necessarily invalidate the commissioner’s report. McCollister v. Shuey, 24 Iowa 362. 5. IÍIGHWAYS : establishment bridges : provision non-jurisdictional. III. The commissioner’s report is defective in.that it does not “show the number of bridges required and the probable cost thereof.” The manifest object of this — 639 — requirement is to furnish the hoard of supervisors information which, in connection with the amount of damages and other expenses, will enable it to intelligently pass on the expediency of establishing the proposed highway. The omission so to do, then, cannot be regarded as jurisdictional; for these features of the report may be waived by the board and the necessary information- ascertained elsewhere. The requirement is directory merely, and not jurisdictional. establishment: conditions. IV. Counsel for appellant next argue that the order of the board of supervisors ,, ... establishing the highway Avas invalid, for that Section 1501 of the Code only authorizes the establishment of a highway to be “conditioned upon the payment, in whole or in part, of the damages awarded, or expenses in relation thereto.” 7' establishment: posed: certainty . The argument proceeds on the theory that “payment” only as technically defined may be exacted as a condition. Though such is not the law (Harris v. Board, 88 Iowa 219, and McElroy v. Hite, 154 Iowa 453), even if it were, there is nothing inconsistent therewith in these proceedings. The only condition prescribed in the order of the board of supervisors quoted is the clause, “petitioners to pay all damages as per appraisement.” What follows is descriptive of the road to be established, save that portion requiring petitioners to petition for the establishment of another highway. That these are expressly exacted excludes the inference that more is required of them. Moreover, the board of supervisors only was authorized to so change the course of the Chariton Eiver as that but one bridge would be necessary. Section 1527-a, Code Supplement, 1913, now superseded by Section 1527-rl ei seq., Code Supplemental Supplement, 1915. Though the proposed road was to be graded, Avho shall do so is not stated. Descriptions of what 'sort of a highway shall be established are not to be con — 640 — strued into conditions exacting that it be put in the condition described by these petitioners. Such a requirement, if made, should be plainly stated, or the language such that this is clearly to be implied; for the burden of expense in establishing highways, in the absence of anything to the contrary, is assumed to be appropriate for the county to bear. 8' oKtabpuhrae'nt: iiiyIn''fulfilling: effect. But two conditions were exacted of the petitioners, i. e., payment of damages and the filing of a petition to vacate one high-ox o way and to establish another. The latter of these has been performed, and therefore the validity of its exaction need not be inquired into. Delay in the performance of the other Avas excusable, for that some of the claims for damages are still in litigation. °' csínbusümont: faSun-To iix mm. limit. The board, in exacting that such conditions be complied with prior to the first Monday in June, 1916, ignored Section 1502 fiie Code, declaring that: “A day shall he fixed for the performance of the condition, which must be before the next session of the board, and, if (he same is not performed by that day, it shall at such session make some final and unconditional order in the premises.” The board might well have obeyed this statute, and, upon failure of the petitioners to pay before its next'meeting, then fixed the time of compliance as at the end of litigation over the amount of damages to be alloAved. io. Statutes : SrecimT y °r But statutes requiring the fixing of a dale for the doing of something which' may as effectually be done at any other time, and merely for the orderly transaction of business, are usually regarded as directory, and we are of opinion that the board still may enter the order, if deemed necessary, fixing the time Avithin which damages shall be paid. — 641 — We discover no ground for interfering with the establishment of the highway as proposed. . ■ , , 13". ^tabiTshment: fataf taáeflníícness. V. In pursuance of . the order heretofore ¡quoted, George F. Carpenter and. 51 others,, on June. 11, 1915, filed a petition • wp:]i the county auditor praying that: “A portion of the highway No. 60, commencing at the northeast corner of Section No. 31, Lincoln Township, Lucas County,- Iowa, and running thence west and southwest to the north line of the southeast quarter of said section, be vacated and annulled, and that a highway 60 feet wide, commencing at the last mentioned point, running thence, east 65 rods, more or less, thence southeast to, intersect the proposed highway along the east line of Section 31, at, a point 10 rods, more or less, south of the northeast corner of the southeast quarter of said Section 31, be established.” Thomas Gookin was appointed commissioner to investigate and report on the vacation and establishment of the highways as proposed, on July 7th following, and on the next day filed his report, saying: “I * * * do hereby report favorably. There would be but one small culvert required, which would cost not. to exceed $40.” . . . Notices were served, claims for damages filed, and a final order entered by the board of supervisors “to grant said road petitioned for, and that petitioners pay all damages as appraised by appraiser’s.” • • It is to be observed that the final order does not' vacate or purport to vacate any portion of “highway No. 60” and that neither the petition nor the commissioner’s report' give the precise location of the highway. It was to be 60 feet wide, and to commence somewhere on the north line of the southeast quarter of said section and extend east 65 rods, more or less, arid thence southeast to the .highway along the section line, at a point 10 rods, more or less, south of — 642 — the quarter corner. It is utterly impossible to ascertain from this description the location of the proposed highway. No survey was made nor plat returned, as authorized in such a case by Sections 1489, 1490 and 1491 of the Code. The first of these sections provides that: “If the precise location of the road cannot otherwise be given, he [commissioner] must cause the line thereof to be surveyed and plainly marked out.” This necessarily is mandatory; for, without so doing, neither those interested, the appraisers nor the board of supervisors, are informed of the location of the highway. Because of the indefiniteness pointed out, the order of the board of supervisors is void. As the first order establishing the highway is found to be valid and the last void, owing to indefiniteness of location, it is unnecessary to take up appellees’ contention that the appropriate remedy, certiorari, was not pursued. Though the board acquired jurisdiction, its last orders were too indefinite to be of any avail. The court rightly dismissed the petition, in so far as the first highway was concerned, but should have enjoined defendants from proceeding in pursuance of the order purporting to establish the' last.' — Modified and Affirmed. Gaynor, C. J., Evans and Salinger, JJ., concur.