Board of Commissioners of Woodson County v. Heed

[37] The opinion of the court was delivered, by HortON, C. J.: It is contended by the board of county commissioners of Woodson county, that the claim for damages for the location of the public road across the land of the claimant was properly disallowed, for the alleged reason that the action of the board in attempting to lay out and establish the road was wholly without jurisdiction, and therefore void. In support of this, it is urged that as no notice was given to the claimant or to anyone in possession or claiming to have possession or control of the land, nor any finding of any kind made with reference thereto, the board had no authority to take action upon the report of the viewers or to order the road to be opened. Section 4, ch. 89, Comp. Laws of 1879, is referred to, and also the following cases: Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kas. 129; The State v. Farry, 23 id. 731; Comm’rs of Chase Co. v. Cartter, 30 id. 581. On the other hand, it is answered that the board of county commissioners had jurisdiction of the subject-matter at the time of its action in the premises, although not jurisdiction of the person of the claimant; but that the want of jurisdiction of the person was cured when the claimant requested the payment of her damages in consequence of the opening of the road. The case is said to assimilate to a judgment that has been rendered without service, when the court had jurisdiction of the subject-matter, but on account of the want of service, no jurisdiction of the person. In such a case, the appearance of the party, except to question the jurisdiction, confers jurisdiction and relates back to the beginning of the action. In short, that any want or defect in the service of process is waived by the general appearance of the party, and that such action is the submission in itself to the jurisdiction of the court or tribunal. (George v. Hatton, 2 Kas. 333; Haas v. Lees, 18 id. 449; Walkenhorst v. Lewis, 24 id. 420.) This view is the correct one. As the land-owner can waive the notice prescribed by the statute by presenting his claim for damages, it is too late, after the road has been opened and such [38] claim has been presented, for the board of county commissioners to revoke its action for want of jurisdiction of the person of the claimant. (Ogden v. Stokes, 25 Kas. 517; Comm’rs of Chase Co. v. Allen, 25 id. 616.) The claimant had notice of the final order of the board locating the road, and thereafter built a lawful fence for one mile on either side of the i'oad. After this action upon her part, and the presentation of her claim for damages, it would be exceedingly unjust to decide that the board of county commissioners should be permitted to deny the validity of its own acts, on account of the want of jurisdiction over the landowner. In this case, everything was done that was necessary for the establishment of the road, excepting the service of the notice upon the claimant, and the board made no attempt to revoke its action until after the claimant had constructed two miles of fence required to be built to leave the road open, and had presented her claim for damages and thereby waived the question of jurisdiction. Under these circumstances, the order of the board in deciding that its action was without jurisdiction was improperly made, and cannot affect the claimant. The ruling and judgment of the district court in overruling the demurrer will be sustained. All the Justices concurring.