Wilson v. Board of County Commissioners

Per Curiam: The county board upon petition ordered a road opened through appellant’s land. He appeared ’before the viewers and presented a claim for $1500 damages. The viewers allowed him damages in the sum of $250. Within ten days thereafter he appealed from the order establishing the road and from the action of the board in allowing him damages. In the district court he filed his motion to dismiss the entire proceeding, claiming that the board of county-commissioners had no jurisdiction in the premises. [799] The court denied the motion and ruled that the appeal from the award of damages waived the question of jurisdiction and that the only question before the court, was the amount of damages. .The ruling is sustained-by numerous decisions. (Flagel v. Jackson County, 83 Kan. 709, 112 Pac. 622, and cases cited in the opinion' at page 710.) That case also decides that where the landowner attempts at the same time under section 2094 of the General Statutes of 1909 to appeal from the order establishing the road, the latter appeal should be dismissed for the reason that the establishment of roads -involves powers not judicial in their nature. (Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125, 1 Pac. 26; Kent v. Comm’rs of Labette Co., 42 Kan. 534, 22 Pac. 610.) The appellant makes the contention that inasmuch as petitions in error have been abolished, by the provisions of the new code, his appeal should, by a liberal interpretation, be regarded as sufficient to bring up for review the order establishing the road. The appeal, however, was clearly taken under section 2094, and in accordance with the decision in Flagel v. Jackson County, supra, brought up no question save that of the allowance of damages. The judgment is affirmed.