Yonota v. Modrachek

Ladd, J. The only issue raised on .this appeal is whether a claimant for damages consequent on the vacation of a highway by the board of supervisors may appeal from its order denying allowance thereof, to the district court. The case is ruled by Grove v. Allen, 92 Iowa 519. That decision was based on Brady v. Shinkle, 40 Iowa 576, holding that damages were not allowable for vacation of a highway by the board of. supervisors. It is said that this and like cases were overruled by McCann v. Clarke County, 149 Iowa 13, and it is so said in that opinion. Such was not the effect of that decision. The reasoning on which Brady v. Shinkle and like cases rest, was disapproved in holding that recovery of damages peculiar to the complainant’s property, and not shared by the public generally, may be recovered. But that was an action instituted in the [540] district court, and not brought there by appeal from an order by the board of supervisors, and therefore the right to appeal therefrom was not involved. Nor was this inquiry touched in Heery v. Roberts, 186 Iowa 61. An examination of the statutes relative to the establishment, alteration, and vacation of highways leads to the conclusion that there is neither provision for the filing of' a claim for damages consequent upon the vacation of a highway or for an appeal from the order of the board of supervisors vacating the same. Section 1493 of the Code provides that: “If the commissioner’s report is in favor of the establishment, alteration or vacation of the road, it shall show the number of, bridges required, and the probable cost thereof; and the auditor shall appoint a day, not less than sixty nor more than ninety days from such time, when the petition and report will be acted upon, on or before which day all objections to the establishment, alteration or vacation of the road, and all claims for damages by reason of its establishment or alteration, must be filed in the auditor’s office.” Note that objections to the vacation of the road may be filed, but only claims for damages by reason of establishment or alteration! The following section directs the auditor to fix a day for hearing, and the next section thereafter prescribes the notice thereof to be given, requiring, among other things, that “all objections thereto, or claims for damages must be filed',” on or before a designated date. Section 1499 of the Code provides for the appointment of “three disinterested electors of the county as appraisers, to assess the amount of damages any claimants may sustain by reason of the establishment or alteration of such road.”' Note that no provision appears for the appraisement of damages consequent from vacation of a highway. Section 1501 of the Code reads: “When the time for final action arrives, the board may hear testimon3r, receive petitions for and remonstrances against the establishment, vacation or .alteration, as the case may be, of such road, and may establish, vacate or [541] alter, or refuse to do so, as in their judgment, founded on the testimony, the public good may require. Said board may increase or diminish the damages allowed by the appraisers, and may make such establishment, vacation or alteration conditioned upon the payment, in whole or in part, of the damages aAvarded, or expenses in relation thereto.” As the appraisers were not authorized to allow damages, these might not be increased or diminished by the board of supervisors, and the last clause cannot well be construed as authorizing the allowance of damages consequent on the vacation of a road. A highway might be vacated in part or wholly, and another established or altered in the same order entered by the board, and payment of damages consequent on alteration or establishment would be required as a condition precedent to the order’s being effective. This conclusion is confirmed by Code Section 1518, which reads: “Any applicant for damages caused by the establishment or alteration of any road may appeal from the final decision of the board to the district court of the county in which the land lies, notice of which appeal must be served on the county auditor within twenty days after the decision is made. If the road has been established or altered on condition that the petitioners therefor pay the damages, such notice shall be served on the four persons first named in the petition, if there be that many residing in the county, in the manner in which an original notice may be served.” Only applicants “for damages caused by the establishment or alteration of any road” are authorized to appeal, and, as plainly appears, claims for damages caused otherwise than by the establishment or alteration may not be filed. Evidently, the statutes referred to proceed on the theory of Brady v. Shinkle, supra, that injury distinct and apart from that suffered by the public generally is not caused by the vacation of a highway. Whether damages may be recovered by claimants in an independent action, as was sought in McCann v. Clarke County, supra, we express [542] no opinion. What we do say, is that the statutes do not authorize the filing of a claim for damages consequent on the vacation of a highway with the county, or, if filed, the allowance for such damages by the board of supervisors, or, if not allowed, appeal therefrom to the district court.— Affirmed. Weaver, C. J., G-aynor and Stevens, JJ., concur.