The opinion of the court was delivered by
Beewek, J.:
statement of faots' This is a road case, an action in which the present owner of a few acres attempts by injunction to ■close up a road opened and used by the public over said tract long before he acquired any title thereto. The facts are these: Eor several years past the plaintiff has resided, his wife being the owner, upon the N.W.J of S.E.J of section 24, township 7, range 21, in Atchison county. While thus residing, and in June 1870, a petition was presented to the county board for a road which was intended by the petitioners to cross the S.E.J of section 24, but in fact named the S.W.J of said section. The road, was simply to cross the quarter-section. The description in the petition as it now appears reads, “a road commencing at about thirty rods west of the southeast corner of the S.W.J section 24, T. 7, E. 21, and on the south line of said quarter, thence running in a northwesterly direction to the north line cf said S.W.jr, about eighty rods from the northeast corner of said quarter of section 24, township 7, range 21, and intersecting the Atchison county-road at S. Scruggs’ land.” In the petition as originally brought to the county clerk’s office the initial point was described as, “ White Oak Grove, on the Leavenworth county-road,” but was at the time of filing changed by the clerk, with the consent of the principal petitioner. The mistake in the description was one that could [394]*394not, as the court finds, have misled any one familiar with the locality. At this time the N.E.£ of the S.E.-J was owned by Henderson and Taylor, and the west sixty acres of the S.f- of. S.E.J by one James Boton, and the east twenty acres by one Cook. “At the time,” as the findings go on to read, “the viewers met to lay out a road under the order issued on such petition, the plaintiff met such viewers near the southeast corner of said southeast quarter, where they proceeded to begin the location of such road under such order, and demanded to see their authority for laying out such road. The surveyor exhibited the order of the county board requiring such road laid out as now described in such petition, and plaintiff then notified said viewers and surveyor that they were then half-a-mile east of the proposed location of such road, as called for in such order, and then denied their right to proceed to lay out a road anywhere on such southeast quarter, but under such order they must go half-a-mile west of where they then were, to locate such road.
“On further conversation, Oliphant offered to permit the road to run across the northwest quarter of said southeast quarter, on the line of the old Indian trail, for $500, or to permit it to run on the east line, giving one-half the road, for $200, which the viewers declined to give; and on the representation ofi a bystander, that Henderson and Taylor would give the right-of-way for such road over their land, the viewers informed said Oliphant that they would not take any of said northwest quarter of said southeast quarter, but would locate the road east of the east line of said northwest forty acres; and thereupon Oliphant said that he had nothing to say, if they did not disturb his forty acres. And the said Oliphant then went away, and said viewers then proceeded to lay out such road on the west side of the northeast quarter of said southeast quarter, taking forty feet off said west side, and allowed damages to Boton, but none to Cook, or Henderson and Taylor, over whose land the road was located; and no damages have ever been allowed or paid for the location of such road across the northeast quarter of said southeast quar[395]*395ter. The said Henderson and Taylor resided in Leavenworth county.
“Neither Henderson nor Taylor was present; and the entire road, forty feet wide, was located on the west side of their land, and from a point on the county-line about thirty rods west of the southeast corner of the southeast quarter of said section, thence northerly to the center of said quarter, thence due north across said quarter, the initial point as actually located being at White Oak Grove, on the line of Leavenworth county, and the terminal point being at the intersection of the Atchison road at Scruggs’ land.
“After the report of said viewers was confirmed, such road was cut out through the timber on said land, twenty feet wide, and the timber thrown to one side, and left there, and a road as so opened, has, ever since August 1870, been opened and traveled as a public highway, the same having been opened by the road overseer by order of the board of county commissioners, of which fact plaintiff had full knowledge.”
Neither upon the face of the petition, nor upon the county records, does it appear affirmatively that the petitioners were householders. The language of the petition is, “the undersigned persons liable to be assessed for highway labor.” And it is stated in one of the findings, that “ no evidence was offered showing that any of the signers to such petition were householders of said county, or that any bond was entered into, or that any notice that such petition would be presented was given by any advertisement set up in the county clerk’s office, and in the township of Walnut in which such proposed road was designed to be laid out; but the then county clerk was a witness, and testified that he filed all papers and proofs brought to his office in such matter, and had no knowledge of any notice whatever having been given, and he thought that the change in the description in such petition was in fact made at the time when the county board acted on same on July 8th. The above finding is made because true, and to avoid a formal bill of exceptions.”
The report, survey, and plat seem to be regular, and duly [396]*396recorded. In December 1871 plaintiff bought the W.J of N.E. J of S.E. £ of section 24 from Henderson and Taylor, and received a warranty deed therefor. After plaintiff's purchase in 1871, he petitioned the county board for a vacation of this road, and appealed from the decision of the board to the district court, but thereafter dismissed the appeal, and in February 1875 commenced this action of injunction. It also appears that he cleared up a portion of this twenty acres, and made several attempts to fence up the cleared land, together with the road, but was each time prevented, so far as the road is concerned, by the defendants. The testimony taken on the trial was not preserved, so that we have only the pleadings and findings before us. To the petition was attached a transcript of the record and papers in the proceedings of the county board.
Upon these facts we remark — first, that injunction is a proper action in a case like this; that a party having the legal title to and right of possession of a tract of land, upon which the public, without any legal authority therefor, is claiming an easement in the shape of a highway, may, if his attempts to take possession of said apparent highway and close it up are resisted by the public authorities, maintain injunction to restrain them from further interference with his rights. We do not decide that this is the only remedy he may pursue, but that it is an adequate and proper one.
II. The statute of limitations has not run against this action. While it might have run as against an action of trespass, for the first opening of the road, yet.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Beewek, J.:
statement of faots' This is a road case, an action in which the present owner of a few acres attempts by injunction to ■close up a road opened and used by the public over said tract long before he acquired any title thereto. The facts are these: Eor several years past the plaintiff has resided, his wife being the owner, upon the N.W.J of S.E.J of section 24, township 7, range 21, in Atchison county. While thus residing, and in June 1870, a petition was presented to the county board for a road which was intended by the petitioners to cross the S.E.J of section 24, but in fact named the S.W.J of said section. The road, was simply to cross the quarter-section. The description in the petition as it now appears reads, “a road commencing at about thirty rods west of the southeast corner of the S.W.J section 24, T. 7, E. 21, and on the south line of said quarter, thence running in a northwesterly direction to the north line cf said S.W.jr, about eighty rods from the northeast corner of said quarter of section 24, township 7, range 21, and intersecting the Atchison county-road at S. Scruggs’ land.” In the petition as originally brought to the county clerk’s office the initial point was described as, “ White Oak Grove, on the Leavenworth county-road,” but was at the time of filing changed by the clerk, with the consent of the principal petitioner. The mistake in the description was one that could [394]*394not, as the court finds, have misled any one familiar with the locality. At this time the N.E.£ of the S.E.-J was owned by Henderson and Taylor, and the west sixty acres of the S.f- of. S.E.J by one James Boton, and the east twenty acres by one Cook. “At the time,” as the findings go on to read, “the viewers met to lay out a road under the order issued on such petition, the plaintiff met such viewers near the southeast corner of said southeast quarter, where they proceeded to begin the location of such road under such order, and demanded to see their authority for laying out such road. The surveyor exhibited the order of the county board requiring such road laid out as now described in such petition, and plaintiff then notified said viewers and surveyor that they were then half-a-mile east of the proposed location of such road, as called for in such order, and then denied their right to proceed to lay out a road anywhere on such southeast quarter, but under such order they must go half-a-mile west of where they then were, to locate such road.
“On further conversation, Oliphant offered to permit the road to run across the northwest quarter of said southeast quarter, on the line of the old Indian trail, for $500, or to permit it to run on the east line, giving one-half the road, for $200, which the viewers declined to give; and on the representation ofi a bystander, that Henderson and Taylor would give the right-of-way for such road over their land, the viewers informed said Oliphant that they would not take any of said northwest quarter of said southeast quarter, but would locate the road east of the east line of said northwest forty acres; and thereupon Oliphant said that he had nothing to say, if they did not disturb his forty acres. And the said Oliphant then went away, and said viewers then proceeded to lay out such road on the west side of the northeast quarter of said southeast quarter, taking forty feet off said west side, and allowed damages to Boton, but none to Cook, or Henderson and Taylor, over whose land the road was located; and no damages have ever been allowed or paid for the location of such road across the northeast quarter of said southeast quar[395]*395ter. The said Henderson and Taylor resided in Leavenworth county.
“Neither Henderson nor Taylor was present; and the entire road, forty feet wide, was located on the west side of their land, and from a point on the county-line about thirty rods west of the southeast corner of the southeast quarter of said section, thence northerly to the center of said quarter, thence due north across said quarter, the initial point as actually located being at White Oak Grove, on the line of Leavenworth county, and the terminal point being at the intersection of the Atchison road at Scruggs’ land.
“After the report of said viewers was confirmed, such road was cut out through the timber on said land, twenty feet wide, and the timber thrown to one side, and left there, and a road as so opened, has, ever since August 1870, been opened and traveled as a public highway, the same having been opened by the road overseer by order of the board of county commissioners, of which fact plaintiff had full knowledge.”
Neither upon the face of the petition, nor upon the county records, does it appear affirmatively that the petitioners were householders. The language of the petition is, “the undersigned persons liable to be assessed for highway labor.” And it is stated in one of the findings, that “ no evidence was offered showing that any of the signers to such petition were householders of said county, or that any bond was entered into, or that any notice that such petition would be presented was given by any advertisement set up in the county clerk’s office, and in the township of Walnut in which such proposed road was designed to be laid out; but the then county clerk was a witness, and testified that he filed all papers and proofs brought to his office in such matter, and had no knowledge of any notice whatever having been given, and he thought that the change in the description in such petition was in fact made at the time when the county board acted on same on July 8th. The above finding is made because true, and to avoid a formal bill of exceptions.”
The report, survey, and plat seem to be regular, and duly [396]*396recorded. In December 1871 plaintiff bought the W.J of N.E. J of S.E. £ of section 24 from Henderson and Taylor, and received a warranty deed therefor. After plaintiff's purchase in 1871, he petitioned the county board for a vacation of this road, and appealed from the decision of the board to the district court, but thereafter dismissed the appeal, and in February 1875 commenced this action of injunction. It also appears that he cleared up a portion of this twenty acres, and made several attempts to fence up the cleared land, together with the road, but was each time prevented, so far as the road is concerned, by the defendants. The testimony taken on the trial was not preserved, so that we have only the pleadings and findings before us. To the petition was attached a transcript of the record and papers in the proceedings of the county board.
Upon these facts we remark — first, that injunction is a proper action in a case like this; that a party having the legal title to and right of possession of a tract of land, upon which the public, without any legal authority therefor, is claiming an easement in the shape of a highway, may, if his attempts to take possession of said apparent highway and close it up are resisted by the public authorities, maintain injunction to restrain them from further interference with his rights. We do not decide that this is the only remedy he may pursue, but that it is an adequate and proper one.
II. The statute of limitations has not run against this action. While it might have run as against an action of trespass, for the first opening of the road, yet. the public acquire no rights to the possession of property, by mere prescription, any sooner than individuals; and the mere occupancy of land by the public for a highway for a period of five years, vests no title thereto in them, and at the end of the five years the owner may attempt to take possession, and if resisted may maintain injunction to restrain such resistance.
III. Plaintiff was in no manner estopped by what took place at the time of the meeting of the viewers from now [397]*397asserting his claims to the land occupied by the highway. All that he did then was to maintain his rights to the land he was interested in as occupant, and husband of the owner. And when they were secured, and the viewers agreed to locate the road over other lands, his right to make objection ceased, and a mere declaration ’ that he had nothing further to say, did not estop him from thereafter asserting full title and right of possession to land subsequently purchased, even to the extent of disputing the validity of the road then attempted to be laid out over the land thus purchased. Scarcely a single element of estoppel is present. Clark v. Coolidge, 8 Kas. 196.
IY. The proceedings in this case for the laying out of the road cannot be sustained under the authority granted in section 16 of the act concerning counties and county officers, (Gen. Stat. 257,) to county commissioners “to lay out, alter, or discontinue any road running through one or more townships in such county, and also to perform such other duties respecting roads as may be provided by law,” and independent of the provisions of the act concerning roads and highways. (Gen. Stat. ch. 89.) For if it were conceded that said section 16 grants-authority to the commissioners of their own motion, and without previous petition, to lay out a road, yet such grant of power would not carry with it authority to delegate the power to others, and the road in this case was not laid out by the commissioners, but by viewers appointed by them. Qui facit per alium, facit per se, may be true of individual action, but is not of official and quasi judicial action. The authority to appoint viewers is contained only in chapter 89, above cited; and for the proceedings prescribed in that chapter a petition is an essential prerequisite.
Y. Whether the -rule be, in cases of this kind, that the burden of proof is on the plaintiff to show that the road proceedings were void, or upon the defendant, after plaintiff’s proof of title to the land, to show that they are valid, need not be decided; for conceding (though only for the purposes of this case) the former to be the correct rule, yet, if the pa[398]*398pers and proceedings before the county board when offered in evidence by the plaintiff do not upon their face show jurisdiction, he has made out a prima facie case, and is not compelled to go outside the record and prove by parol the non-existence of jurisdictional facts. In other words, he may rest upon the record, if the record fails to show jurisdiction. There is no presumption in favor of tribunals of limited and special jurisdiction of the existence of facts outside of those named in the record. A party asserting their existence, must prove them, or the case will stand as though they did not exist.
YI. A petition signed by at least twelve householders, is a condition precedent to the exercise of any authority on the part of the commissioners under the roads - and - highways act. Its existence is a jurisdictional fact. (Willis v. Sproule, 13 Kas. 257; Comm’rs Wabaunsee County v. Muhlenbacher, ante, 129, 132.) If the record upon its face fails to show affirmatively the existence of this fact, the proceedings will, when attacked directly by petition in error, be held void; (ante, p. 132.) If attacked collaterally, as in this case, doubtless the fact that the petitioners were householders, and reside ing in the vicinity of the road, might be proved by evidence aliunde the record; (Willis v. Sproule, 13 Kas. 257, 264, and cases there cited;) but if not thus proved, and the record does not disclose the fact, the proceedings must be held void.
We have been not a little embarrassed by the effort of counsel to make a finding serve the purpose of both a finding, and a bill of exceptions. The purposes and scope of the two are entirely dissimilar. The one narrates the evidence as it is offered, the other states the facts the court finds to have been proved by such testimony. The one states what took place at the trial, the other what existed before suit was commenced. A statement therefore, in a finding, that such evidence was or was not given, may be entirely ignored. At first we were of the impression that this would compel an affirmance of the judgment, and are far from clear that such ought not to be the decision. But to the petition is attached [399]*399the record of the proceedings before the county board, and this record is not denied in the answer. This record fails to show that the petitioners were householders. Prima fade it shows that thé county board had no jurisdiction, and that the proceedings were void. This record was in evidence. There is no finding that the petitioners were householders, none that a- sufficient petition was presented, and no fact stated anywhere in the findings from which it can be inferred that a sufficient petition existed. We therefore, though with grave doubts of the correctness of the ruling, order that the judgment be reversed, and the case remanded for a new trial.
All the'Justices, concurring.