Hughes v. Milligan , 42 Kan. 396 ( 1889 )

Opinion by

.Holt, C.:

The plaintiff complains, first, that chapter 67, Laws of 1867, as amended by chapter 57, Laws of 1869, is unconstitutional, contravening §17, article 2, which provides “ that in all cases where a general law can be made applicable no special law shall be enacted.” This is no longer an open question in this state. It has been held that the legislature must determine whether the purposes of a particular law can or cannot be expediently accomplished by a general law. (The State v. Hitchcock, 1 Kas. 178; Beach v. Leahy, 11 id. 23; Comm’rs of Norton Co. v. Shoemaker, 27 id. 77.)

The second complaint is, that the petition for opening the alleged road did not state facts sufficient to authorize the board of county commissioners to order the opening thereof. So far as that objection relates to the signing of the petition, we think from the examination of a photographic copy that the names were not very plainly written, and might have been, and probably were, signed by one person; but he may have been duly authorized by the others to sign their names. Some of the signers were Indians, and only one of their names — either the given or surname — was signed; there is some testimony showing that this was no unusual way of signing among them. The county board acted upon this petition, and found it signed by the requisite number, and the district court also made a like finding. We are unwilling to disturb these findings; they are supported by some evidence, and are sufficient here.

The third objection is, that said petition was not signed by ten freeholders. It is established by the evidence that eight of the eleven whose names appear upon the petition, owned land in the vicinity of the road, and that the other three were living with their wives upon land occupied by them as a homestead, the wife having the legal title to the land in each case. The question to be decided therefore is, whether a husband is a freeholder who lives with his wife on land of which she has the title, when occupied by them jointly as a homestead. A freehold estate is defined by Blackstone to be “such an estate in lands as is conveyed by livery of seisin, and may be in fee simple or conditional fee, and may be for life only.” (2 Bl. Com., p. 126.) By the common law the estate of dower was a freehold estate; and also the estate by the curtesy; and although in the latter the title to the land was in the wife, yet upon the birth of a child the husband was called tenant by the curtesy initiate, and upon the death of the wife he was called tenant by curtesy consummate. The interest that the husband has in the homestead of the wife is a different estate from that by the curtesy initiate, but in some respects at least it is analogous. It is probably a greater and more definite estate under our homestead law than given by the common law of England under the name of the estate by curtesy. It is at least a life estate, conditioned upon his occupying the premises during his lifetime, and not executing a conveyance thereof. In several of the states of the Union the interest of the wife in the homestead owned by the husband has been denominated a freehold estate. We therefore believe that the interest of the husband in the homestead owned by his wife, while they jointly occupy it, makes the husband during their marriage and occupancy a freeholder.

Another objection is, that no sufficient record was ever made of the actions of the county board in granting the alleged highway, and steps looking to the opening thereof. The entry in the road record in the first place was very meager, yet we think it was probably sufficient. There was a plat with the road marked plainly thereon, and although there should have been an entry in the journal of the county commissioners, its absence does not make the order a nullity. Section 67, General Statutes of 1868, provided that the county board shall require the reports, surveys and plats of roads to be recorded. There was no report in this case, nor survey, as the section line was declared by law to be a highway; but the plat was duly made and placed on record in a book called the road record.

The remaining objection of the plaintiff is, that no notice was ever given to the land-owners of the application for the opening and laying out of the alleged road. We think this objection valid. The statutes declared section lines in Jackson county public highways, but such a law, without providing for any compensation to the land-owners for the land taken, would be unconstitutional. (Mining Co. v. Drake, 26 Kas. 345.) In this case, however, the statute made provision for the payment of damages in conformity to the general road law. Under the general road law of 1868, before a highway could be laid out and opened it was necessary that three viewers should be appointed, whose duty it was to determine whether the road prayed for was necessary, taking into consideration its utility, convenience and practicability, and also the expense that would result if the road should be opened. It was also the duty of the said viewers to assess and determine the amount of damages sustained by any person through whose land the road might run. This section line was declared a public highway by law, and the question of practicability and utility of the road was determined in advance by the statute, but the question of damages to the land-owners was a matter still to be determined; and construing §2, chapter 89, General Statutes of 1868, so as to give it some force and meaning, we hold that it was necessary to have appointed viewers to ascertain the damages sustained by the owners of the land through which the road should pass, and until that was done, under the testimony in this case, the plaintiff had a right to treat the order opening this road as a nullity. When property is taken by the state or a county, a municipal subdivision thereof, a proper tribunal must be constituted, before whom the party may make his claim for damages. It is not necessary in a case where the state, or a municipal corporation acting by authority of the state, takes private property, that compensation shall be first paid; it is sufficient if provision is made for its payment, and an impartial tribunal constituted before whom the owner of the land can go to claim and receive his damages without delay. (Cooley, Const. Lim. 560, 561; The State v. Messenger, 27 Minn. 119.)

The owner of the land in this case had no notice of the opening of the road and the taking of her land, except what may have been given by the road record. No tribunal was constituted before which .she could present her claim for damages. The law provided how the road might have been opened, and directed the manner in which an opportunity might have been given for claiming damages for the land taken. It was not .complied with, nor even attempted to be.

We think without these preliminary steps being taken the county board had no power to grant the road, and its order was void.

Therefore we recommend that the judgment be reversed.

By the Court: It is so ordered.

Horton, C. J., and Valentine, J., concurring.

Johnston, J.:

The highway having been located and established by the legislature, the only question remaining to be settled was the amount of compensation due to the owners of the land over which the road was laid. As stated in the prevailing opinion, prepared by Commissioner Holt, private property may be taken by the state for a highway without first paying the compensation. It is necessary that suitable provision should be made by law for obtaining compensation, and to that end there must be an impartial tribunal provided which is convenient and free of access to any owner, where he can have a hearing and obtain an allowance for the property appropriated. (Cooley, Const. Lim., §§ 560, 561; The State v. Messenger, 27 Minn. 119.) In my opinion such a tribunal has been provided in this case. The provisions of the general road law are to govern in cases like this, so far as they are applicable. By that law the board of county commissioners is given authority to determine the amount of compensation for the land appropriated for the road, and to make an allowance therefor. It is the tribunal which is invested with general jurisdiction for the allowance of all claims and accounts which have become a charge against the county. It is open and free of access to every one having a claim, and was to the owners of lands appropriated in this case.