Akin v. Board of Commissioners

The opinion of the court was delivered by Horton, C. J.: On April 8, 1885, L. Newell and more than twelve other householders of Riley county presented to the board of county commissioners of that county a petition for the laying out of a public road. Subsequently other proceedings were had, resulting in the board ordering the road to be opened as petitioned for, located and surveyed. On June 5, 1886, the plaintiff brought his action against the board of county commissioners, the trustee of his township, and the road overseer of his district, to perpetually enjoin the opening of the road. Trial had, and judgment rendered against the plaintiff. It is claimed that the order of the board of county commissioners establishing the road was void because the provisions of § 3, ch. 89, Comp. Laws of 1879, were not fully complied with in this: that there was not posted up in the municipal township where the plaintiff resided, and through which the road was designed to be laid out, any notice of the time and place of the meeting for the view and survey of the road; and, also, that the only notice given by the county clerk by advertisement in his office was contained in a file kept in his office of the Manhattan Republic, a newspaper printed at Manhattan, in Riley county, and of general circulation therein. We do not think the plaintiff is in any condition to question the validity of the proceedings of the county board in establishing and opening the road over his land, on account of the failure to give the notices alleged. It appears from the findings of fact that the plaintiff resided in Zeandale township, one of the municipal townships of Riley county; that he was present at the time and place appointed by the board of county commissioners for the view of the road, and handed to the viewers a claim for damages, in writing, amounting to the [177] sum of $125; that he was allowed thereon damages to the amount of $47.25; that on July 7,1885, with others, he filed with the board a remonstrance against the location of the road; that at the January session of the board for 1886 he appeared before the board and opposed the location of the road, and objected thereto. At no time did he make any special appearance, and therefore all the notices not given were waived by him. (Ogden v. Stokes, 25 Kas. 517; Comm’rs of Woodson Co. v. Heed, 33 id. 34.) That the plaintiff has refused to accept the damages allowed him, and has at all times denied the right of the board to locate the road, does not materially affect the case; for aught that appears from the record, all the other owners of the land through which the road has been laid out have accepted their damages, and are satisfied to have the road opened. The judgment of the district court will be affirmed. All the Justices concurring.