A manual of the law of roads and highways in the state of Kansas : with forms and record entries

Front matter

A MANUAL OF THE LAW

OF

Loads and Highways

Preface To The Ninth Edition

When, twenty years ago, I put forth this manual, the Road Law was hut ten years old ; the Supreme Court had interpreted but little of it, and in advising my readers I had often to tread untrodden paths. The book has since been several times revised by other hands. This is my second revision ; and coming back now to my original text, which revisers have left untouched, I am gratified, as well as astonished, that I find so little to change of what I wrote eighteen years ago. I have, however, brought the book fully up to date, and I think I may say with confi¬ dence that all our statutory law concerning highways is to be found in this book. To the officers who have had to wait for this revision with what patience they were willing to manifest, I offer the single excuse that I am unwilling to have anything of the kind go out in my name that I am not satisfied is accurate and complete.

The Road Law would not be chosen as a desirable liter¬ ary theme, but I believe I have become known to more people in Kansas through this unexciting manual than I could have become known to through the most thrilling romance. So this humble labor has its compensations.

G. C. CLEMENS.

Topeka, Kansas, July 15, 1C05.

Contents

PART I.

Interpretation of Road Laws:

What the Petitioners must Do. 9

I. What The Petitioners Must Do

THE PETITION.

Although power “to lay out, alter or discontinue any road” is given to the county commissioners in general terms (Gen. Stat. 1901, sec. 1621, subdivision 8), they have no authority to lay out, alter, nor vacate any road, unless a petition is presented to them by twelve householders of the county residing in the vicinity of the prpposed road. The board cannot act in the matter of its own motion. (18 Kas. Rep. 386-396 ; 50 Kas. Rep. 635.) A householder is a person of full age, owning or occupying a house as a place of residence, and not as a boarder or lodger. (Gen. Stat. 1901, sec. 7342, subdivision 25.) In short, a householder is an adult person, who keeps house as master or mistress of the house. One needs not to be married in order to be a householder (4 Kas. Rep. 120); and a single woman may be one as well as a man. The petition must describe the pro¬ posed road “with sufficient certainty to enable a practical surveyor to run it.” (59 Ind. Rep. 54; 73 Ind. Rep. 454.) “The description of a highway embraces its beginning, course, and termination. If in any of these particulars it is so uncertain that a practical surveyor cannot place it, the entire road fails.” (73 Ind. Rep. 455.) The county commissioners have no power to lay out the road unless it will be of public utility (section 6), and hence the petition should aver that the proposed road will be so. Printed petitions, with blanks for the descriptions, etc., can usually be had of the county clerk. The proper form for a petition is given in the latter part of this book. (See Forms and Record Entries.)

It must appear in some way that the petitioners, or at least twelve of them, are householders, for this fact is jurisdictional and should

♦When not otherwise Indicated, the references are to the sections following the heading, “Coi*- lated Road Statutes.” »

KANSAS ROAD LAWS.

somewhere in the record be shown to exist before a view is ordered. If the record does not show this fact, the proceedings are void on their face if attacked by petition in error. (18 Kas. Rep. 132, 398.) But if the petition shows upon its face that twelve householders of the county are signers, the record will be good if it shows simply that the board made a finding “that the law had been substantially complied with.” (44 Kas. Rep. 558.) It need not state that any evidence was offered that the petitioners were householders. (Id.) Let it not be forgotten, however, that the fact itself must exist, or its non-existence may be proved and the order establishing the road be declared void.

THE BOND.*

One or more of the petitioners must give a bond, with sureties, to secure the expenses of the view, and this bond must be presented to the commissioners with the petition. (Section 1.) If the road shall be established by the commissioners, the county will pay all the ex¬ pense, and this bond will then amount to nothing ; but if the commis¬ sioners decide against the proposed road, then the bondsmen will have to pay the expenses of the proceedings, or be sued upon the bond. (Sections 1 and 6.) These expenses will amount to between ten and eighteen dollars a day during the time the viewers or commissioners are actually engaged in making the view, and there may be some other small items of expense. (See section 18.) A printed bond, with proper blanks, may be usually had of the county clerk. A form for it is given in the latter part of this book.

PRESENTING PETITION.

At the next regular session of the county commissioners, the peti¬ tion and bond should be presented to the board. If the board finds that the petition is signed by proper parties, householders, and enough of them — twelve,— and that the proposed road is so de¬ scribed that a practical surveyor could take the description and run it, and that the bond is good and in proper form, they will make an order appointing viewers, or deciding that the commissioners them¬ selves shall act as viewers, and directing the county clerk to give notice of the petition and view. (See “What the County Commis¬ sioners ARE TO DO, AND WHAT THE COUNTY CLERK IS TO DO.”)

* Such a bond may now be given with a surety company as surety (Laws 1903, ch. 489); so that one’s neighbors need not be asked to incur uncertain liabilities.

WHAT THE PETITIONERS MUST DO.

NOTICE TO LAND-OWNERS.

At least six days before the time for the viewers to meet, the peti¬ tioners, or the principal petitioner, must serve notice of the time and place of the meeting of the commissioners or the viewers upon every owner of lands through which the road will run, who lives anywhere in the county, or has an agent living anywhere in the county; or if any of the lands are owned by a minor, an idiot, or an insane per¬ son, the notice must be served on that person’s guardian-, if there be a guardian living in the county. An “agent” means, in this statute, one who has authority to act in such matters ,— not merely an agent for any purpose. (26 Kas. Rep. 509.) If a land-owner does not live in the county, and has no agent living in the county and au¬ thorized to attend to such matters, no notice is to be served on him ; and if a minor, an idiot, or an insane person has no guardian living in the county, no notice can be legally served upon such person. The object of this notice is to enable the land-owner to apply to the viewers, or to the commissioners when acting as viewers, for the assessment of damages. (12 Kas. Rep. 531, 533.) But if a land-owner presents to the board of county commissioners a claim for damages to his land, want of notice to him is cured, and he can¬ not object to the road on that ground. (33 Kas. 34; 36 Kas. 664 : 47 Kas. 402.)

WHO IS A LAND-OWNER.

The term land-owner in these proceedings has a wide meaning, and does not include merely the actual owner of the title to land, nor one who owns the land itself ; but includes every person having any rights connected with the land, and which may be affected by the location of the road through it. Thus, a tenant may have a nur¬ sery upon the very land the road will take ; and he would be a “land-owner” upon whom notice must be served. If there are sev¬ eral owners, as heirs, notice should be given to each. Notice should be given to both landlord and tenant. (49 Iowa Rep. 569.) The party giving a mortgage is still the owner — the mortgagee is not. (47 Kas. 355.) If a lawsuit is going on between two claimants of the land, both should have notice; and if the land should be in pos¬ session of a receiver, he should have notice. In short, the safe course will be for the petitioners to give notice to every one appear¬ ing to have any kind of interest in the land, leaving the viewers or commissioners to settle the question of right. A form for this notice

KANSAS ROAD LAWS.

is given in the Forms and Eecord Entries. The principal petitioner must also give the surveyor six days’ notice.

RELOCATING ROAD.

If the true line of an established or public road has become doubt¬ ful or uncertain — the monuments or marked trees removed, for in¬ stance—it may be resurveyed under the direction of viewers, or, at their discretion, of the county commissioners acting as a board of viewers. But in such case, it is the old road that is to be found — the very road laid out — and the purpose is not to construe nor to correct the old survey. (20 Ohio State Hep. 180.)

A petition signed by twelve householders is as necessary as in proceedings for laying out a new road, and unless such a petition ispresented, the whole proceeding for relocation will be void ; for with-, out such a petition the board of county commissioners has no power whatever to act. (34 Kas. Rep. 595.) But if the object is nothing more than to merely relocate the old road — not to alter it in any way; if the old road, just as it was laid out , is to be merely found and marked again, it will not be necessary to give notice to land-owners as if it were a proceeding to lay out a new road. (22 Ohio St. Rep. 180; 34 Kas. Rep. 595.) If anything more than this is in¬ tended, however, then notice of the view should be published and notices should be served on the land-owners precisely as in other pro¬ ceedings. (34 Kas. Rep. 595-603.) If the reader will refer to “What the Road Overseer is to Do,” he will perceive how im¬ portant relocation proceedings may become, and how often they may become necessary in a prairie country.

A proceeding to relocate will not be barred by a previous refusal of the county board to establish a new road over the same line as if no road had ever been established there. (103 Indiana Rep. 48.)

ROAD ON COUNTY OR CITY LINE.

When a road is to be established on or along a county or city line, the proceedings are somewhat similar to those in other cases; the main difference consists in the joint action of the two boards and the two sets of viewers. (Sections 9, 10.)

APPEAL FROM COUNTY COMISSIONERS.

A land-owner may appeal from the decision of the county board, and he may take his appeal under either section 1640 or section 6022 of the General Statutes of 1901, sec. 7 of Collated Road

WHAT THE PETITIONERS MUST DO.

Statutes in this Manual. (18 Kas. Rep. 575.) But the appeal will not, in either case, bring before the district court the question of public utility, for that is an administrative, not a judicial, question. Only the question of the land-owner’s damages will be open on the appeal. (42 Kas. Rep. 534; 34 Alabama Rep. 461-464; 6 Indiana Rep. 237.)

Of course, if the county board refuses a petition arbitrarily, and without exercising fair, honest judgment, the district court can fur¬ nish the petitioners a remedy. (Last clause of section 1923, Gen. Stat. 1901.) But an appeal to a jury in a district court upon this •question of discretion was certainly not contemplated by the legisla¬ ture. Neither, it has been held, can this question be determined upon a petition in error. (3 Mass. Rep. 406; 9 Gray [Mass.] Rep. 57; 6 Cushing’s [Mass.] Rep. 306; 10 Mo. Rep. 679.)

In awarding damages for the location of a county-line road, each board of county commissioners of the counties between which it is to be laid out acts separately; and an appeal from the award made by either board must be taken within thirty days after the order ap¬ pealed from, regardless of when final action is taken by the other board. (45 Kas. Rep. 442.)

PETITION IN ERROR.

Another way to have the proceedings reviewed by the district ■court is by a “petition in error,” which will be fully enough ex¬ plained under the head, “How to Contest a Road; ” for this pro¬ ceeding may be used by either party.

Whenever either an appeal or a proceeding in error is to be taken, the petitioners should at once consult counsel; for non-professional men can very easily make fatal mistakes in such proceedings.

HOW THE NOTICE IS TO BE SERVED.

The statute does not provide how the notice shall be served, and hence, it must be handed to the party personally; it cannot be left at his usual place of residence. (6 Rhode Island Rep. 255, 259; 1 Curtis’s U. S. Circuit Ct. Rep. 437; 18 Barbour’s N. Y. Rep. 393 ; -25 Barbour’s Rep. 636, 646 ; 2 Jones’s [N. C.] Law Rep. 52 ; Wade on the Law of Notice, §§ 1334-1342.) Of course, if the land-owner appears before the viewers or the commissioners when acting as viewers, and claims his damages, it will be immaterial how the notice was served on him or whether it was served at all; for his appear-

KANSAS ROAD LAWS.

ance waives all objections of that kind; (25 Kas. Rep. 517, 518;) and if he afterwards tiles with the county board his claim for dam¬ ages, that is a waiver of all defects in the notice. (33 Kas. Rep. 34; 36 Kas. Rep. 664; 47 Kas. Rep. 402.) But as it cannot be cer¬ tainly known in advance that he will appear and waive objections, prudence requires that a strictly legal service shall always be made, or waived in writing. Since there can no longer be any doubt that a waiver of service is good in such cases, and as it tends to greatly facilitate the proceedings, a form of waiver has been inserted among the forms in the latter part of the present edition of this manual, to be used whenever the persons to be notified are amicably disposed, and thus make service of notice on them unnecessary.

PROOF OF SERVICE OF NOTICE.

The petitioner, or other person serving the notices to land-owners, must make out and preserve a true copy of each notice served, and must make an affidavit that he did serve it, when, and how, and file these copies and affidavits with the county clerk before the next meeting of the county board. (See Forms.) Until these are filed, the board of county commissioners cannot legally act concerning the road. (23 Kas. Rep. 732.) If written waivers of service have been taken from any persons, these should also be filed with the other proofs of service.

ROAD ON SECTION LINE.

If a road is to be located, changed, or relocated upon or along a section line, and the petition states the fact, and specifies the section lines to be followed, the place of beginning and the place of ending, the county commissioners may dispense with the survey; and if the owners of all the lands taken agree in writing to the proposed loca¬ tion, relocation or change, and the commissioners are satisfied that the location, relocation or change prayed for is practicable and can be made without unreasonable expense, a view may be also dispensed with. But in such a case the petitioners or signers must own all the land through which the road is to run; otherwise a view will be nec¬ essary to assess damages, even if but a single land-owner dissents. (8 Blackford’s Ind. Rep. 289.)

The same proceedings are to be had upon a petition to alter and vacate a road as upon a petition to establish one; except that upon vacation of a road no damages are to be assessed. (10 Kas. Rep. 95, 99, 100.)

WHAT THE COMMISSIONERS ARE TO DO.

II. What The Commissioners Are To Do

ORDER FOR VIEW.

When a road petition is presented to them for their action, the county commissioners are to see that a satisfactory bond in proper form has been filed ; and, if so, whether the petition is regular in form, and whether it properly and clearly describes the beginning, end and course of the proposed road ; and they should require the evidence of some one, either by an affidavit or by being sworn orally before them, that the signatures to the petition are genuine; that the petitioners live in the vicinity of the proposed road ; and that they are “householders.” What a householder is has been explained al¬ ready. (Pp. 9,10.) If the petition and bond are in proper form and satisfactory, the commissioners are to so decide, and unless they de¬ termine to act as viewers themselves, which they may do if they choose, they are to make an order appointing three householders of the county, who have no interest in the matter, to act as viewers. The order must fix a day for the commissioners or the viewers to meet, and direct the county clerk to give notice of the petition and of the day the commissioners or the viewers are to meet. The commis¬ sioners must also issue an order directing the county surveyor to meet with them or the viewers at the time fixed. The county sur¬ veyor must make the survey. (40 Ill. Rep. 522.) The time for the meeting of the commissioners or the viewers must be fixed at not more than twenty days after the date of the second publication in the newspaper, of the required notice. (Section 3.) How the record is to be made and entered will be explained when we come to “What the County Clerk is to do.”

FAILURE OF VIEWERS TO MEET.

If the commissioners or the viewers fail to meet at the time fixed, and also on the next day, a new order must be made, directing anew notice and fixing another time for the meeting of the commissioners or the viewers. (Section 3.) Failure of the commissioners or the viewers and the surveyor to meet at the appointed time, or on the next day, or on an adjourned day, invalidates whatever they may have done, or may do. No proceedings taken nor assessments made

KANSAS ROAD LAWS.

by them after such failure can be valid. Their power ceases at once. (103 Ind. Rep. 575.) When the commissioners have decided to act or viewers have been once appointed, the county board has exhausted its powers for the time being. It cannot take another step of any kind until either the commissioners or the viewers file a certificate, or it is brought to the notice of the board, as a board, that the commissioners or the viewers have failed to meet. In the latter case, all the board can do is to fix another time of meeting, or make a new order to act as viewers, or appoint new viewers, and •order a new notice to be given. The board can do nothing at all but to keep on fixing new times of meeting, or making new orders to act as viewers or appointing new viewers and ordering new notices, until at last it gets a certificate filed by its members or by viewers ; then it can proceed with the case again, but not till then. (34 Kas. Rep. 556.) If a certificate is not made when it should be, the board should ascertain the reason; and if it finds nothing has been done, a new notice should be ordered, and a new order made that the commissioners shall act as viewers or that new viewers be appointed if that seems advisable. (34 Kas. Rep. 561.)

ACTING UPON THE CERTIFICATE OF THE VIEWERS.

When the commissioners or other viewers have filed their certif¬ icate, if it is favorable, the commissioners should see whether copies of the notices to land-owners, with the affidavits showing service, are on file; and if not, or if they are not regular in every way, the board should decline to proceed further until this requirement of the law has been complied with; for unless it is complied with, the com¬ missioners have no power to proceed. (23 Kas. Rep. 731, 732.) A land-owner may waive the six days’ notice, and if he actually pre¬ sents his claim for damages to the viewers, or to the commissioners acting as viewers, then it is immaterial whether the six days’ notice was actually served upon him or not. (33 Kas. 34; 36 Kas. 664; 47 Kas. 402.) Of course, where that is so, the board of county com¬ missioners need not insist upon the filing of the notice and affidavit as to him. (25 Kas. Rep. 517, 518.)

It is highly important, too, that the board should see to it that the county clerk has properly given the required notice in the proper manner and for the proper length of time; for if he has not done uo, the board has no jurisdiction to proceed; (19 Illinois Appellate

WHAT THE COMMISSIONERS ARE TO DO.

Rep. 259 ;) and no matter how good the record may say the notice was, if none was in fact given, anybody interested may prove this afterwards, and the whole proceedings will fall. (32 Kas. Rep. 509 and 555—557.) The statute does not require any proof before the board that this notice has been properly given, but provides only that the board shall cause a record of the notice to be entered on the journal. (32 Kas. 555-558.) The county commissioners are, how¬ ever, sworn officers, and are not expected to make a record which for aught they know may be a sheer falsehood. They are to see to it that the record they make is true. (43 Ohio St. Rep. 335; 66 Iowa Rep. 414.) The notice to be given by the clerk is no mere idle form ; its object is that all persons interested may be heard before the viewers or the commissioners acting as such. (32 Kas. Rep. 557.)

But if the notices have been properly given to the land-owners or waived by them ; if the copies of notices served and the affidavits of the service have been properly made and filed ; if the county clerk has properly given the notice required to be giypn; and if the pro¬ ceedings of the viewers themselves or of the commissioners acting as viewers seem to have been regular and valid, then the county commissioners are to consider whether the road should be established, altered, or vacated; (section 6;) and in doing so are to act as a court , and exercise a sound, sensible discretion. For even though the proceedings be all regular, and the certificate favorable, yet the petitioners are not, for these reasons, absolutely entitled to their road as a matter of right; but the board is to remember that the taxpayers all over the county are to help pay for the road, if granted, and is to use its own good judgment as the only protection those tax¬ payers can have in the proceedings. (47 Iowa Rep. 32.) In short, the commissioners are to deliberately and carefully balance the ex¬ pense of opening the road, on the one hand, against the benefit and advantage of the road to the public, on the other. (2*7 Kas. Rep. 659-663.) The question for the board to decide is, not whether the road will be useful and advantageous to the petitioners merely, but whether it “will be of public utility”; (section 6 ;) for onl y public roads are to be made at the expense of the public. However, the law itself seems to imply that if a road is necessary or highly bene¬ ficial to twelve householders, it is of public utility ; (section 1;) for all

KANSAS ROAD LAWS.

the proceedings are based upon that theory. So all that can be said, at last, is, that the commissioners are to exercise sound, liberal and honest judgment as to the usefulness of the proposed road. Part of the road cannot be laid out. All must be or none. (12 Connecticut Rep. 88-94.)

ESTABLISHING KOAD.

If they think the road will be of public utility, then—if the pro¬ ceedings have been regular and legal—they are to make an order directing that the certificate, survey and plat be recorded, and that order establishes the road; (1 Greene’s Iowa Rep. 439;) and the commissioners are then to issue an order requiring the trustees of the townships traversed by it to cause it to be opened to public travel. (Section 6.)

BOARD MAT ADJOURN PROCEEDINGS.

Of course the board is not compelled to act finally at the first meeting after the certificate is filed, but may adjourn the consideration of the matter as it may any other proceeding requiring the exercise of enlightened judgment. (12 Kas. Rep. 17-25.) It may, at the same session, reconsider its conclusion and continue the hearing to a future day during the same session. (39 Kas. 283.) But after the session closes, it cannot revoke its order opening the proposed road without a regular petition and proceedings as for vacating any other road. (50 Kas. 635.)

REVISING ASSESSMENT OF DAMAGES.

The next duty of the commissioners is to determine the amount of damages to land-owners; and this subject will be considered when we come to “What the Yiewers are to do.” (Section 7.)

UNFAVORABLE ACTION.

If the commissioners conclude that the road is unnecessary, the proceedings are at an end, upon the making of^the order by the com¬ missioners so declaring; and thereupon the bondsmen must pay the expenses that have accrued, or be sued upon their bond, unless, of course, the payment is suspended by an appeal or other proceedings. An appeal, however, from the decision in such a case can accomplish but little, if anything, for the petitioners, except additional expense; and it would be better, speedier, and perhaps cheaper, to begin over

WHAT THE COMMISSIONERS ARE TO DO.

again. (See Forms and Record Entries for proper record entry upon unfavorable action.)

The same proceedings are to be had upon a petition to alter or to vacate a road as if it were a petition to lay out a new one, except that, usually, no damages are allowed land-owners upon the vaca¬ tion of a highway. (10 Kas. Rep. 95, 99, 100.)

KANSAS ROAD LAWS.

III. What The County Clerk Is To Ho

THE ROAD RECORD.

By a statute already in force when the road law was pw.ed, the county clerk is required to keep a “road record.” This proviaion is section 49 of chapter 25 of the General Statutes of 1868, (Gen. Stat. 1901, sec. 1665,) and is as follows:

“It shall be the duty of the county clerk to record in a proper book, to be called the ‘road record,’ a record of all proceedings in regard to laying out and establishing roads in the county, which said record shall include the report of the commissioners [viewers] and surveyor locating such roads, and maps thereof; and such records, or duly certified copies thereof, are hereby declared prima facie evidence of the state¬ ments therein contained, in the courts of this State.”

The road law does not change this provision, except that the rec¬ ord of the notice to be given by the county clerk is to be entered on the journal. (Section 3.) It seems, therefore, that this notice should be recorded in both the journal and the “road record”; for it is evidently intended that the “ road record ” shall contain a com¬ plete history of all the road proceedings.

RECORD ENTRIES.

The clerk has nothing to do with the approval of the bond to be given by the petitioners. That is to be approved by the commis¬ sioners when the petition is presented to them. Except to file and preserve papers, the clerk has nothing to do with the matter until the commissioners act upon the petition. It is the usual custom, however, for the clerk to put in proper and legal form the orders and proceedings of the board ; and hence it is important that he should be prepared to make proper entries under the law. A com¬ plete set of entries to be made upon the record will be found in Forms and Record Entries ; and it may be of interest to county clerks that a “Road Record ” containing these entries, with blank spaces, so that little writing will be necessary to make up a com¬ plete record of each road, is prepared and sold by Crane & Co., blank book manufacturers, Topeka, Kansas. The “Road Record” entries are taken from the forms provided by the author to accom¬ pany this Manual, and a full set of notices, petitions, etc., corre¬ sponding with the author’s forms and with the “Road Record,” is also published by the same firm.

WHAT THE VIEWERS ARE TO DO.

IV. Should Listen To All Parties

The viewers or the commissioners when acting as viewers are not simply to assess damages, but to listen fairly to all persons inter¬ ested who come before them to oppose or advocate the road, and to come to an honest and reasonable conclusion just as a court would be expected to do. When the commissioners do not themselves act as viewers, the viewers are to the board what a referee is to a court. When the county commissioners do not themselves go out and ex¬ amine the road proposed, the law has provided for these viewers to go out in their stead and investigate thoroughly, so they can tell the commissioners what they have found out about the matter, and aid the board with their advisory opinion, based upon what they have seen and heard. In short, the viewers are assistants of the board — they are to be the eyes and ears of the commissioners. To illustrate : Suppose a dozen of us have some thoughts of purchasing a distant business — a mine or something of that sort — but we wish to have some reliable information about it before we invest, for, so far, we have had all our information from the parties desiring to sell. We meet together and agree to send three of our members to examine into the matter and report to us what they find out, and to give us their honest opinion whether we should buy or not. Now these three men would be our “viewers,” and what we should expect of them , is precisely what the law authorizes the county commissioners to expect of their “viewers,” so far as concerns the question whether the road should be laid out or not. The certificate should give the board full information as to all good reasons urged by people for or against the road, so that the commissioners may sit down and use their own judgment on all the circumstances. The viewers are to give their opinion, and the commissioners are to respect it, and to even rely upon it in case of serious doubt; but at the same time, the