Dunlap v. Pulley

28 Iowa 469

• Court: Supreme Court of Iowa
• Decided: April 8, 1870
• Status: Published

Opinion

Wright, J.

Appellee, relying upon the provision of the Constitution, that private property shall not be taken for public use without just compensation (art. 1, § 18), insists that he would not be liable for a failure to remove this obstruction until he was paid the $100 awarded him by the appraisers. In other words, he says this compensation, secured to him by the Constitution, is withheld; and, while it is thus withheld, the public has no right to his property.

He forgets, however, that, though entitled to compensation, he is entitled to it only in the manner provided by law. Connelly v. Griswold, 7 Iowa, 416. If he failed to ask for compensation, or failed to apply in time, or, applying, was unsuccessful in showing his right thereto, he could not, upon any principle, resist the right of the public to open the road, upon the ground that he has not been paid for injuries or losses which he claims to have sustained. If the board rejected his claim because not properly presented, because not preferred in time, or upon any ground (having jurisdiction to so decide), his remedy was by appeal. Neglecting to avail himself of this remedy, or to take some appropriate step to have his compensation awarded, if other steps are open to him, he cannot, in this proceeding, defeat a recovery, because of the error or irregularity of the board in rejecting his claim. The mere appointment of the appraisers to examine and report as to the applicant’s damages would not prevent the subsequent rejection of the claim because not filed in time. At least, the board would have the power to so order. Though such order may have been ever so erroneous, until set aside in some method known to the law, it is binding, and defendant would be without protection in tbe violation of his official duties; for he failed, and fails, to show that he is entitled to compensation as provided by law. These are familiar principles, and, following them, this judgment was erroneous. See McCrory v. Griswold, 7 Iowa, 248.

Reversed.