Citation Numbers: 42 Kan. 416
Judges: Simpson
Filed Date: 7/15/1889
Status: Precedential
Modified Date: 9/8/2022
Opinion by
This is an appeal from the decision of the board of commissioners of Morris county to the district court of that county for not awarding to plaintiffs in error damages arising from the location and opening of a public road through their land. The district court impaneled a jury and tried the cause, the trial resulting in a verdict and judgment in favor of the county. The errors assigned here, and urged by counsel, are the admission of improper evidence; the rejection of proper evidence; a refusal to give certain instructions asked for by the plaintiffs in error; instructions given that were excepted to by plaintiffs in error; and in overruling a motion for a new trial.
On the 8 th day of October, 1884, a petition in due form was presented to the board of county commissioners, asking
On this state of facts the jury returned a general verdict for the county, without special findings; but the controlling question is, and probably was, as to the validity of the agreement made by Butler. The board of county commissioners acted on this agreement, and made its order locating and opening the road in accordance with its condition, and this was the consideration that the plaintiffs in error received for the waiver of damages. It is now contended that the plaintiffs in error could not waive their damages by parol. Their attitude with respect to this question is such that gross injustice would be done if their contention should be sustained. They have reaped the benefits of the agreement, and it would be palpable injustice to permit them to now repudiate it. It is useless to discuss the abstract question as to whether or not damages occasioned by the location of a public highway through land can be waived by parol by the owner. There is safe ground beyond that question, upon which our decision can securely rest. The agreement has been fully executed on the part of the board of county commissioners. All the benefits that the plaintiffs in error expected from the agreement have accrued to them, and now they will not be heard to say that the agreement is not valid because not in writing. This agreement is a complete bar to any action for damages that could be instituted by the plaintiffs in error. There can be no question of jurisdiction in view of the facts, and all other errors complained of are immaterial, as damages were expressly waived, and the sole object of this action is to recover for them.
We recommend the affirmance of the judgment.
By the Court: It is so ordered.