Palmer v. Vance

62 N.W. 857, 44 Neb. 348, 1895 Neb. LEXIS 54

• Court: Nebraska Supreme Court
• Decided: April 3, 1895
• Docket: No. 6272
• Status: Published

Opinion

Noryal, C. J.

A public road was located over lands belonging to the relator and his damages were allowed at $50. An appeal was taken to the district court, where he recovered the sum of $65 and costs taxed at $100.75. This action was brought against the respondents, as the county commissioners of Saline county, to compel them to draw a warrant in favor of the relator on the county road fund for the amount of said judgment and costs. A writ of mandamus was denied and the action dismissed.

A single question is presented for determination and that, is whether the respondents should have paid the judgment in controversy out of moneys in the county road fund. In Ackerman v. Thummel, 40 Neb., 95, this court had under consideration the several statutory provisions relating to the location of highways and the payment of damages sustained by the land-owner by reason of the establishment of a public road, and it was there held that all such damages must be paid out of moneys in the road fund of the road district in which the land taken for highway purposes is situated, and that the county is not liable for the payment of such damages. The rule there announced is decisive of the case at bar, and that too against the contention of relator. The respondents having no authority to draw, a warrant on the county treasury in payment of the judgment, the district court did not err in refusing the writ of mandamus'. The judgment is

Affirmed.