State ex rel. Wilson v. Carlson

The opinion of the court was delivered by Porter, J.: In an action brought by the state the appellant was enjoined from 'obstructing a public road laid out and opened for travel more than thirty years ago. The question involves, so far as appellant’s rights are concerned, only that part of the road which crosses his land. Road No. 17 in Hodgeman county was laid out in 1885, leading in a southerly direction from the city of Jetmore to connect with a [486] road in Ford county to Spearville on the Santa Fe railroad. Ever since it was laid out it has been used and traveled. In a collateral attack on the original proceedings the appellant urges a number of technical obj ections to the sufficiency of the record, contending that these show a lack of jurisdiction in the commissioners. The affidavit of service of notice to landowners was sworn to before a deputy county surveyor, who it is insisted was not authorized to administer oaths, except to witnesses called before the viewers. The error was, at most, of trifling importance, and must be held cured by lapse of years. Appellant’s land belonged to the Atchison, Topeka and Santa Fe Railroad Company when the road was' established. The record of the proceedings fails to show service of notice to the company except by publication, and there was no finding by the commissioners that the railroad company was a nonresident of the county. In Worden v. Cole, 74 Kan. 226, 86 Pac. 464, we took judicial notice of when and where the railway line of this same railroad was definitely located, and also that a certain odd-numbered section of land is within the congressional grant to the railroad company. (To the same general effect see Patterson v. Railway Co., 77 Kan. 236, 94 Pac. 138.) If the commissioners had solemnly found that the railroad company, which then owned the land, was not a resident of Hodgeman county, they would have found a fact which every one is presumed to have known, and of which courts will take judicial notice. The road as established across appellant’s land conforms to the petition, and his objections that other portions of it were not laid out in conformity to the petition as respects the termini are of no consequence. The commissioners’- record shows the report of the viewers, the survey and plat; all these on their face appear regular, and show with reasonable certainty a substantial compliance with the requirements of the law, which is all that is necessary. As said in the opinion in Gehlenberg v. Saline County, 100 Kan. 487, 490, 165 Pac. 286, quoting from Lewis et al. v. Laylin et al., 46 Ohio St. 663, 666: “ ‘In determining the sufficiency of the records of inferior tribunals and public boards, to express their purposes or to preserve a memorial of their transactions respecting matters within their jurisdiction, technical precision should not be required; on the contrary, they should be liberally construed.? ” [487] Besides, it was held in the Gehlenberg case that, since the statute (Laws 1874, ch. 108, § 6) requires that the commissioners shall order the viewers’ report, the survey, and the plat to be recorded, and declares that “from thenceforth said road shall be considered a public highway.” “This is a legislative declaration, that upon the recording of the report, survey and plat, the road shall he regarded, prima facie, as legally established. The declaration is unqualified, binds landowners, public officials and the courts, and casts upon any person contesting the road proceedings the burden of establishing their invalidity.” (p. 491.) The action here is not an appeal by the landowner from proceedings to establish a road; it is a collateral attack made more than thirty years after the proceedings to establish the road were instituted. The introduction .of the-record placed the burden upon appellant to show a lack of jurisdiction, all the presumptions being in favor of the regularity of the proceedings leading up to the making of the record. The state contends that the evidence was sufficient to show the establishing of a road by prescription, aside from the sufficiency of the record, but we deem it unnecessary to consider that question, for the reason that the objections raised to the record itself are not sufficient to overturn the presumption of its validity. The judgment is affirmed.