Schade v. Theel

[629] The opinion of the court was delivered by "VALENTINE, J.: The controversy in this case is, whether or not a certain road in Wabaunsee county is a legal highway or not. It appears that on or about October 2, 1874, a petition for the appointment of viewers to view, lay out and locate a certain public road was presented to the board of county commissioners of Wabaunsee county, and on November 7, 1874, the petition was “taken up and granted,” and three viewers were appointed for the above purpose. It appears that these viewers met at the proper time and place, viewed and located the road, and made a report of their proceedings to the county board. On January 4, 1875, the report was “taken up, report approved and roads ordered opened” by the county board. The principal objection to the legality of the road as a public highway is, that it does not appear from the records of the county board that the petition for the appointment of the viewers and location of the road was signed by twelve householders, as required by law. (Gen. Stat. of 1889, ¶ 5474.) Now, as the petition itself shows that more than twelve persons signed the same, and states that they were “residents and householders” of Wabaunsee county, and as the county board granted the petition, appointed the viewers, and afterward approved the report of the viewers and ordered the road to be opened, we think it may be fairly said that the records of the county board show that the petition was signed by the requisite number of householders as required by law, and that the petition itself was a legal and valid petition. (Howell v. Redlon, 44 Kas. 558; same case, 24 Pac. Rep. 1109.) Another objection is made to the legality of the aforesaid road, upon the ground that the petition asked for two separate and distinct roads. Such is not shown to be the fact, however. From the petition and the entire proceedings we would think that the supposed two roads were in fact only one road. Besides, there being no substantial irregularities in the establishment of the aforesaid road, but only slight irregularities, [630] if irregularities at all, it must be considered that the act of the legislature approved March 7,1885, (Laws of 1885, ch. 16, p. 13,) legalizing certain roads and highways of Wabaunsee county, cures all defects and renders the aforesaid road and the record thereof legal and valid in every respect. The judgment of the court below will be affirmed. All the Justices concurring.