admissible for this purpose.11 Nevertheless, when jurisdiction is once shown, the courts will construe further proceedings with liberality; and a substantial compliance with the statute in such cases will be held sufficient.12 [156] j. Defects in Proceedings 18-(1) In General. Where jurisdiction has once attached, subsequent irregularities do not, as a rule, invalidate unless prejudice has resulted to the party complaining.14 [157] (2) Waiver and Estoppel-(a) In General. In proceedings to lay out a public highway, 238, 98 NW 660; Yankton County v. Klemisch, 11 S. D. 170, 76 NW 312. 11. Howard v. Schmidt, 70 Kan. 640, 79 P 142; Oliphant v. Atchison County, 18 Kan. 386; Spurlock v. Dornan, 182 Mo. 242, 81 SW 412; Mulligan v. Martin, 125 Mo. A. 630, 102 SW 59; Navin v. Martin, (Mo. A.) 102 SW 59; Beardslee v. Dolge, 143 N. Y. 160, 38 NE 205, 42 AmSR 707; Austin v. Allen, 6 Wis. 134. [a] A recital of filing of clain for damages is open to contradiction, Howard V. Schmidt, 70 Kan. 640, 79 P 142. want of jurisdiction of the person,15 and statutory requirements as to the manner of procedure,16 enacted for the benefit of individuals, rather than for the benefit of the public generally," except such as render them wholly invalid,18 may be waived by the parties interested; 19 but want of jurisdiction of the subject matter cannot be thus waived.20 Defects and irregularities in the proceedings may be waived by failure to make objections,21 or by delay in making them, 22 by taking an appeal,23 by acquiescing in the layout,24 or by consenting to the irregular 18. Wells v. Rhodes, 114 Ind. 467, 16 NE 830. [a] The consent of a landowner to a private road over his land does not give the board of county commissioners jurisdiction to establish a public road thereon, nor waive irregularities in proceedings therefor under the statutes. Pagel Fergus County, 17 Mont. 586, 44 P 86. 19. Woodworth V. Spirit Mound Tp., 10 S. D. 504, 74 NW 443. 20. Pagel V. Fergus County, 17 Mont. 586, 44 P 86; Damp v. Dane, 29 Wis. 419. V. error. Warren v. Gibson, 40 Mo. A. 178 Iowa 372, 43 NW 225; Gurnsey 469. (2) Formal error. Vanderbeck v. Edwards, 26 N. H. 224; Hoy v. v. Blauvelt, 34 N. J. L. 261. (3) In- Hubbell, 125 App. Div. 60, 109 NYS definite description of termini. In re 301. Union Tp. Road, 29 Pa. Super. 573. (4) Description of road as private road. Howard v. Schmidt, 70 Kan. 640, 79 P 142. (5) Failure to file copy of notice with record. In re Towamencin Road, 23 Pa. Co. 113, 15 Montg. Co. 194. (6) Failure of minor owners to make themselves parties and file claims. Morton v. Hood River County, 88 Or. 144, 171 P 584. (7) Mere failure of the commissioners' [b] False statement of jurisdic- court to comply with all the stattion. The proceedings of a highway utes relating to laying out public commissioner in laying out a high-roads. Race v. State, 43 Tex. Cr. way may be collaterally attacked, in 438, 66 SW 560. (8) Mistake of an action against him for falsely viewers as to ownership of land. stating in his return to a writ of certiorari to review the proceedings that the road did not run through plaintiff's yard, by showing that the road did in fact run through plaintiff's yard and that therefore the commissioner was without jurisdiction to lay it out. Beardslee V. Dolge, 143 N. Y. 160, 38 NE 205, 42 AmSR 707. Sacramento County v. Glann, 14 Cal. 15. Damp v. Dane, 29 Wis. 419; [c] Evidence of qualifications. (1) When attacked collaterally, the fact that petitioners are qualified householders or freeholders may be shown by testimony aliunde the record. Oliphant v. Atchison County, 18 Kan. 386; Austin v. Allen, 6 Wis. 134. (2) Parol evidence is admissible, documentary evidence not being absolutely indispensable in such cases. Austin v. Allen, 6 Wis. 134.11 S. D. 223, 76 NW 928. (2) One (3) But when no such testimony is offered, the party who produces the record and rests upon it alone makes out a prima facie case that the proceedings were void. Oliphant Atchison County, 18 Kan. 386. V. 12. Missouri Pac. R. Co. v. Atkinson, 23 Colo. A. 357, 129 P 566; Thatcher v. Crisman, 6 Colo. A. 49, 39 P 887; Howard v. Dakota County, 25 Nebr. 229. 41 NW 185; State v. Smith, 100 N. C. 550, 6 SE 251. 13. Commissioners: Acts and proceedings see supra § 93. Qualification and competency see supra §§ 84, 88. Report see supra § 108. Notice: Of applications see supra § 60. of view see supra § 95. v. Petition see supra §§ 68-73. Review see infra §§ 160-187. 14. Cal. Sacramento County Glann, 14 Cal. A. 780, 113 P 360. Ind. Fulton v. Cummings, 132 Ind. 453. 30 NE 949. Kan.-Guthrie v. Atchison County, 94 Kan. 584, 146 P 1157; Hentzler v. Bradbury, 5 Kan. A. 1. 47 P 330. Me.-Coomb's App., 68 Me. 484. Minn. -State V. Morrison, Minn. 454. 157 SW 706. Mo.-Warren v. Gibson, 40 Mo. A. 469. 132 N. J.-Vanderbeck v. Blauvelt, 34 N. J. L. 261. Or.-Morton v. Hood River County, 88 Or. 144, 171 P 584. Pa. In re Union Tp. Road, 29 Pa. Super. 573. Tex.-Race v. State, 43 Tex. Cr. 438, 66 SW 560. [a] Rule applied to: (1) Trivial [a] A general appearance (1) operates as a waiver of service and jurisdiction of the person. Hanson v. Cloud County, (Kan. A.) 55 P 468; Hurst v. Martinsburg, 80 Minn. 40, 82 NW 1099; Issenbluth v. Baum, appearing cannot object that other owners were not served with notice. Hurst v. Martinsburg, 80 Minn. 40, 82 NW 1099. (3) But a general appearance after a motion to dismiss is overruled does not operate as a waiver. McKee Highway Comrs. v. Smith, 217 Ill. 250, 75 NE 396. [b] Special appearance.-A landowner did not submit to the court's jurisdiction in proceedings to lay out a road, although he entered a special appearance, and the attorney representing him appeared for other objectors. State v. Morrison, 132 Minn. 454, 157 NW 706. 16. Mich. Nye v. Clark, 55 Mich. 599, 22 NW 57. N. H.-State v. Richmond, 26 N. H. S. D.-Woodworth v. Spirit Mound 374. "The supervisors must take all the steps necessary to establish a highway under the statute. The owner stands upon his strict legal rights, and cannot be presumed to waive any objection because he fails to make it before the supervisors." Roehrborn v. Schmidt, 16 Wis. 519, 522. [a] "The court may refuse to inquire into the matter at an advanced stage of the proceedings, upon the ground that the parties by appearing, making no objection to the ju risdiction, and proceeding to contest the case upon its merits, have admitted all facts necessary to show the jurisdiction; but the court may receive evidence of the want of jurisdiction at any stage, and if that is made to appear, the petition should be dismissed." In re Patten, 16 N. H. 277, 281. 21. Cal. - Humboldt County V. Dinsmore. 75 Cal. 604, 17 P 710. Ind.-Wells V. Rhodes, 114 Ind. 467, 16 NE 830. Iowa. Stronsky v. Hickman, 116 Iowa 651. 88 NW 825. Mo.-Searcy v. Clay County, 176 Mo. 493, 75 SW 657; Seafield v. Boline, 169 Mo. 537, 69 SW 1051. N. H.-Huntress v. Effingham, 17 N. H. 584. 22. Nobleboro v. Lincoln County, 68 Me. 548; Carpenter's Pet., 67 N. H. 574, 32 A 773; In re Kennett, 24 N. H. 139; Peo. v. Mills, 109 N. Y. 69, 15 NE 886; Marble v. Whitney, 28 N. Y. 297; Vondron v. Cranberry Tp., 8 OhS&CP 227, 6 OhNP 534. [a] It is too late to object: (1) After judgment. Nobleboro v. Lincoln County, 68 Me. 548. (2) On appeal. Peo. v. Mills, 109 N. Y. 69, 15 NE 886. (3) After reference. White v. Landaff, 35 N. H. 128; Stevens v. Goffstown. 21 N. H. 454. [a] A town may be estopped as [b]__Refusal of selectmen to lay an individual would be. Ives v. East out. The right of a landowner to obHaven, 48 Conn. 272; Freetown v.ject that selectmen have not refused Bristol County, 9 Pick. (Mass.) 46; to lay out a highway, as alleged in State V. Boscawen. 32 N. H. 331; the petition for opening it, is waived Damp v. Dane, 29 Wis. 419. 17. Woodworth V. Spirit Tp.. 10 S. D. 504, 74 NW 443. by his failure to urge it on hearing Mound before the commissioners before trial on the merits. In re Carpenter's Pet., 67 N. H. 574. 32 A 773. "It is not, as the counsel of the 23. Page v. Boehmer, 154 Mich. 693, 118 NW 602; Campau V. Le Blanc, 127 Mich. 179. 86 NW 535: waive Weber v. Stagray, 75 Mich. 32, 42 NW 665; Prescott v. Patterson, 44 Mich. 525, 7 NW 237. [a] A grantee of one estopped is 24. Ill-Posey v. Highway Comrs., himself estopped. Miller v. Schenck, 196 Ill. A. 597. HIGHWAYS ity.25 Pleading. In order to be available, waiver must 32 (b) Applying for and Accepting Damages. Application for ages, or appeal from the award of damages,34 estops or acceptance of 33 damlandowners to contest the validity of the layout of a highway, on the ground of irregularities in the Mass.-Freetown v. Bristol County, 9 Pick. expenditure). 46 (by inaction during N. H.-State v. Boscawen, 32 N. H. 331 (for twenty years). N. Y. In re Woolsey, 95 N. Y. 135. N. D.-Kleppe v. McHenry County Odin Tp., 40 N. D. 595, 169 NW 313. Oh.-Roller v. Kirby, 1 Oh. Dec. Reprint_76, 1 WestLJ 550. 322 Pa.-McMurtrie v. Stewart, 21 Pa. (seven years' use). Vt.-Felch v. Gilman, 22 Vt. 38. Wis.-State v. 184. 22 NW 150. Wertzel, 62 Wis. v. Schenck, 78 V. Lauer, 73 Kan. 25. Iowa.-Miller Iowa 372, 43 NW 225. Kan.-Keeler 388, 85 P 541. Mo.-Albers Co. 196 Moung. Milan, 73 N. H. 552, 64 A 16. Tex.--Patterson v. Hill County, 43 Tex. Civ. A. 546, 95 SW Cown v. Hill, (Civ. A.) 73 SW 850. 39; McBut see Scott v. State. 1 Sneed (Tenn.) 629 (no estoppel by activity in having road laid out and subsequently buying land). [a] A landowner who consents to the route of a projected highway as reported by the jury of view cannot complain that it varies from that ordered by the commissioners' court. McCown v. Hill, (Tex. Civ. A.) 73 [29 C. J.] 473 36 proceedings, where such irregularities are not fatal to the jurisdiction.35 the claim for damages reserved the right to contest The rule is otherwise where the establishment of the highway,3 claim filed was conditional, and was abandoned. 37 or where the The mere allowance of damages without the acceptance thereof can estop no one.38 [§ 159] (3) Curative Statutes. often passed to cure defects in road proceedings.39 Statutes Such curative acts are within the inhibition against special or local legislaconstitutional,4 40 unless tion.41 Such statutes do not, however, validate proceedings which were originally void for want of jurisdiction,42 or revive roads which have ceased 147 NW 240; Miller v. Brown, 56 suant ure of the landowner to appeal pur- as damages, are cation, does not estop him from as- V. (Tex. 31 S. D. 623, 141 NW 973. Colo. A. 49, 39 P 887. Ill. A. 227. Iowa. Fair v. Buss, 117 Iowa 164, Kan.-Evans v. Edelbrock, 106 Minn. 493, 18 NW 454. N. Y.-Parker v. Van Houten, 7 519. 33. Mich.-Prescott V. SW 850. 39. see Pa.-Adle v. Sherwood, 3 Whart. Wis.-Taylor v. Oxfordville, 147 Wis.-Moore v. Roberts, 64 Wis. ger, 29 Wis. 68; Karber v. Nellis, 104 V. [d] for compensation for lands taken by A right of way deed, signed by a large number of landowners, 128, 29 P 250 (by receiving damages plicable.-(1) Thatcher v. Crisman, See Patterson v. Munyan, 93 Cal. conveying to a county the right of the proper assessment of damages). way necessary to make a particular estopped to consider the road as lo- Ilwaco R., etc., Co., 17 Wash. 652, for opening a road a person is not [b] Curative statutes held inapboulevard one hundred and fifty feet cated the true public road, and in width, as to all lands whose own-establish his fence accordingly, and streets 6 Colo. A. 49, 39 P 887; Ilwaco v. ers joined therein, cured all defects hold the land inside it). in a prior proceeding to establish to 50 P 572. the highway. (2) An act declaring that 34. Albers v. Acme Pav., 785, 181 P "heretofore etc.. Co., 196 Mo. A. 265, 194 SW 61. County, 90 Kan. 107, 132 P 1176. Canaday V. Hull, platted on tide lands located and Consent of legislature to laying 121: Kan. of tide land appraisers, are hereby Wilson by boards out highway over state lands Cloud validated as public highways," has 35. Eminent Domain § 109. Dahlin v. Eddy, 125 Minn. 359, 147 NW 240; Dettman v. Pittenger, a board. no application where there has been Necessity of consent of landowner Parker County, 23 Tex. Civ. A. 536. 89 Nebr. 825, 132 NW 407; Allen v. Co.. 17 Wash. 652, 50 P 572. no actual location or platting by such in exceptional cases see Eminent Do- 57 SW 703. Ilwaco v. Ilwaco R., etc., main § 320. 26. Chase v. Cochran, 102 Me. 431, See also In re Appleby Ind. 15, 8 NE 1; 40. Manor Road, 1 Grant (Pa.) 443, 445 County, 107 Ind. 600. 8 NE 9: Fair v. Johnson v. Wells County, 107 67 A 320; La Barre v. Bent, 154 Mich. ing out of a public road is a matter nett v. Fisher, 26 Iowa 497; State v. (where the court said: "As the lay- Buss, 117 Iowa 164, 90 NW 527; Ben520, 118 NW 6; Hoy v. Hubbell, 125 in which the whole community_are Ellingham v. Wells App. Div. 60. 109 NYS 301. [a] Proceedings highway which are void are not ren-regularity in laying it out. establishing interested, the application of Ben- Com, v. Reiter, 78 Pa. 161. dered valid as a jamin Fry cannot cure the great irMessenger, 27 Minn. 119. 6 NW 457; with others, petitioned for the high- the illegality to our notice, and we because he, have no equity, but he has brought Wells County. 107 Ind. 15. 8 NE 1; 41. Ellingham He may way, worked on it, and received com- see that it affects the public rights, 51 Md. 107 Ind. 600, 8 NE 9; Johnson v. Wells County, pensation therefor from public funds. and makes the county liable for dam- law). La Barre v. Bent, 154 Mich. 520, 118 ages O'Brian v. Baltimore County Comrs., for 15 (not void as a road which, for aught a special that appears, may not be necessary 15 Fed. 177. 8 Sawy. 543; State v. 42. for any public purpose apart from Cipra, 71 Kan. 714. 81 P 488; HeaBurns v. Multnomah R. Co., the interest of the railroad company. cock v. Sullivan, 70 Kan. 750, 79 P It is, therefore, our duty to take notice of and correct the error"). H to exist.43 Such statutes are not to be construed as having a retroactive effect, unless it clearly appears that it was so intended by the legislature.** [160] k. Appeal and Error-(1) Right to Appeal (a) In General. As highway proceedings are not according to the course of the common law, they are generally considered not reviewable by writ of error;45 and, in regard to appeals, the general rule that the right to appeal exists only when expressly conferred by constitutional or statutory provision is applicable.17 Under the statutes of many states, however, the right of appealing to another board or specified court exists,18 some of the statutes conferring the right but limitlature cannot authorize the appro- | 135 Ark. 83, 204 SW 746; Ross v. 91 Me. 102, 39 A 468; Eden v. Hanpriation of private property to pub- Becker, 169 Ind. 166, 81 NE 478; cock County, 84 Me. 52, 24 A 461; lic uses without notice to the owner, Kirsch v. Braun, 153 Ind. 247, 53 Gray v. Cumberland County, 83 Me. and therefore cannot legalize a pro-NE 1082; Clark v. Kilbride, 282 Mo. 429, 22 A 376; Conant, Appellant, 83 ceeding for that purpose when it has 101, 220 SW 880; Pemigewasset Me. 42, 21 A 172; Appleton v. Pisbeen had without such notice." Bridge v. New Hampton, 47 N. H. cataquis County, 80 Me. 284, 14 A Burns v. Multnomah R. Co., 15 Fed. 151. (2) However, a statute allow-284; Cole v. Cumberland County, 78 177, 183, 8 Sawy. 543. ing an appeal where a claim against Me. 532, 7 A 397; Boston, etc., R. a county is disallowed by the county Co. v. York County, 78 Me. 169, 3 A commissioners does not authorize an 273; Byron's App., 57 Me. 340; Orrappeal from a decision of the com-ington v. Penobscot County, 51 Me. missioners locating a highway and 570; In re Brunswick, 37 Me. 446. assessing the damages therefor, as such assessment does not create a claim against the county. Koenig v. Winona County, 10 Minn. 238. (3) Where proceedings are instituted for the taking of land for a public road by private citizens, and not by the county, the road becomes a highway 43. Hunter V. Chicago, etc., R. Co., 99 Wis. 613, 75 NW 977; Williams v. Giblin, 86 Wis. 147, 56 NW 645. State v. Atwood, 11 Wis. 422. [a] Statutes held prospective see State v. Atwood, 11 Wis. 422. 44. [b] Statutes held retroactive see Simmons V. Cornell, 1 R. I. 519; Tomlinson v. Wallace, 16 Wis. 224. 45. Conn.-Windsor V. Field, 1 Conn. 279. Kan.-Wabaunsee County v. Muh-of lenbacker, 18 Kan. 129. Me. In re Banks, 29 Me. 288. Md.-Greenland v. Harford County, 68 Md. 59, 11 A 581; Savage Mfg. Co. v. Owings, 3 Gill 497. N. H.-Dorchester v. 31 N. H. 451. the commonwealth, which the township wherein it is located is bound to keep in repair, and over which the county has no ownership or control; and in such case no appeal lies from the award of the viewWentworth,ers to the court of common pleas. Lamoreux V. Luzerne County, 116 Pa. 195, 9 A 274. "The jurisdiction of a district court to review on proceedings in error an order of county commissioners establishing a road has been upheld (Howell v. Redlon, 44 Kan. 558, 24 P 1109; Chase County v. Cartter, 30 Kan. 581. 1 P 814; Wabaunsee County V. Muhlenbacker, 18 Kan. 129)." Flagel v. Jackson County, 83 Kan. 709, 711, 112 P 622. 46. See Appeal and Error §§ 29, 39. 47. Ark McMahan v. Ruble, 135 Ark. 83, 204 SW 746. Ill.-Lockman v. Morgan County, 32 Ill. A. 414. Ind.-Frankfort Const. Co. v. Sims, 185 Ind. 71, 113 NE 298. Kan. Kent v. Labette County, 42 Kan. 534, 22 P 610. Me.-Freeman V. Franklin, etc., County, 74 Me. 326; In re Banks, 29 Me. 288. Md. Greenland v. Harford County, 68 Md. 59, 11 A 581; Webster V. Cockey, 9 Gill 92; East Baltimore Station Methodist Protestant Church v. Baltimore, 6 Gill 391, 48 AmD 540; Savage Mfg. Co. v. Owings, 3 Gill 497. Minn. Koenig v. Winona County, 10 Minn. 238. Mo.-Aldridge v. Spears, 40 Mo. A. 527. N. H.-Pemigewasset Bridge v. New Hampton, 47 N. H. 151. N. Y.-Peo. v. Nelson, 26 How Pr 346; Peo. v. Lawson, 17 Johns. 277. N. C.-Cook v. Vickers, 141 N. C. 101, 53 SE 740; Hawkins v. Randolph County, 5 N. C. 118. Pa-Warriorsmark Tp. Road, 126 Pa. 305, 17 A 595; In re Chestnut St., 86 Pa. 88. Wis.-State v. Wallman, 110 Wis. 312, 85 NW 975. Md.-Greenland v. Harford County, 68 Md. 59, 11 A 581; Hazlehurst v. Baltimore, 37 Md. 199; Page v. Baltimore, 34 Md. 558; Rundle v. Baltimore, 28 Md. 356; East Baltimore Station Methodist Protestant Church v. Baltimore, 6 Gill, 391, 48 AmD 540; Alexander v. Baltimore, 5 Gill 383, 46 AmD 630. Mich.-Brown v. Greenfield Tp. Bd., 92 Mich. 294, 52 NW 614; Peo. v. Hamtramck Tp. Bd., 38 Mich. 558. Minn. State v. St. John, 47 Minn. 315, 50 NW 200; State v. Flaherty, 46 Minn. 128, 48 NW 686; State v. Rapp, 39 Minn. 65, 38 NW 926; Gorman v. St. Mary, 20 Minn. 392. [c] In what proceedings statute Mo.-Summers v. Cordell, 187 SW may be attacked.The question as to 5; Bennett v. Woody, 137 Mo. 377, 38 whether a constitutional provision SW 972; Nickerson v. Lynch, 135 clothing a specified court with ap-Mo. 471, 37 SW 128; In re Big Hol pellate jurisdiction upon all ques- low Road, 111 Mo. 326, 19 SW 947; tions concerning a roadway is vio- Sutherland v. Holmes, 78 Mo. 399; lated by a statute limiting the right Anderson v. Myrtle Tp. Bd., 75 Mo. of appeal in condemnation proceed- 57; In re Gardner, 41 Mo. A. 589; ings to questions of law may only Webster v. Spindler, 36 Mo. A. 355; be raised on appeal from such pro- Cox v. Dake, 34 Mo. A. 80; In re ceedings, and may not be raised in Farmer, 4 Mo. A. 568 mem. an injunction suit to restrain road N. H.-Peirce v. Portsmouth, 58 N. commissioners from proceeding to H. 311; Underwood v. Bailey, 56 N. lay out a road. Painter v. St. Clair, H. 187; Boston, etc., R. Co. v. Cilley, 98 Va. 85, 34 SE 989. 44 N. H. 578. 48. Ala-Lowndes County Comrs. Ct. v. Bowie, 34 Ala. 461. Ark. Baugher V. Rudd, 53 Ark. 417, 14 SW 623. Conn.-Hall v. Meriden, 48 Conn. 416. Ida. Feltham v. Good Road Dist. N. Y.-In re De Camp, 151 N. Y. 557, 45 NE 1039; Peo. v. Hildreth, 126 N. Y. 360, 27 NE 558 [aff 1 Silv. Sup. 358, 5 NYS 308]; Matter of Barrett, 7 App. Div. 482, 40 NYS 266; Matter of Glenside Woolen Mills, 92 Hun 188, 36 NYS 593; Peo. V. Temple, 27 Hun 128; Matter of Kingsbridge Road, 4 Hun 599 [aff 62 N. Y. 645 mem]. Ill.--Ravatte v. Race, 152 Ill. 672, 38 NE 933; Pool v. Breese, 114 Ill. 594, 3 NE 714; Peoria County V. N. C.-Dickson v. Perkins, 172 N. Harvey, 18 Ill. 364; Sangamon C. 359, 90 SE 289; Keaton v. GodCounty v. Brown, 13 Ill. 207; Whit-frey, 152 N. C. 16, 67 SE 47; Cook taker v. Gutheridge, 52 Ill. A. 460. v. Vickers, 141 N. C. 101, 53 SE 740; Ind.-Kirsch v. Braun, 153 Ind. Russell v. Leatherwood, 114 N. C. 247, 53 NE 1082; Glassburn v. Deer, 683, 19 SE 643; Lambe v. Love, 109 143 Ind. 174, 41 NE 376; Badger v. N. C. 305, 13 SE 773; McDowell v. Merry, 139 Ind. 631, 39 NE 309; Bron- Western North Carolina Insane Asynenburg v. O'Bryant. 139 Ind. 17, 38 lum, 101 N. C. 656, 8 SE 118: King NE 416; Wilson v. McClain, 131 Ind. v. Blackwell, 96 N. C. 322, 1 SE 485; 335, 30 NE 1093; Potter v. McCor- Ashcraft v. Lee, 81 N. C. 135; Andmack, 127 Ind. 439, 26 NE 883; Yel-ers v. Anders, 49 N. C. 243; Shoffner ton v. Addison. 101 Ind. 58: Breit- v. Fogleman, 44 N. C. 280. See also weiser V. Fuhrman, 88 Ind. 28: Gatling v. Liverman, 23 N. C. 63 Crossley v. O'Brien, 24 Ind. 325, 87 (holding that under early statutes AmD 329; Beeler V. Hantsch, 5 the right was somewhat limited). Blackf. (Ind.) 594. N. D.-Semerad v. Dunn County, 35 N. D. 437, 160 NW 855. Oh.-Geddes v. Rice, 24 Oh. St. 60; Wood County v. Junkins, 19 Oh. St. 348; Duncan v. Ferguson, Wright 740. Or. McCall v. Marion County, 43 Or: 536. 73 P 1030, 75 P 140: Towns v. Klamath County, 33 Or. 225, 53 P 604; Hammer v. Polk County, 15 Or. 578. 16 P 420. V. Iowa. Raymond v. Clay County, Va.-Painter v. St. Clair, 98 Va. 68 Iowa 130, 26 NW 34; Vancleave v. 85. 34 SE 989. Clark, 37 Iowa 184; Warner v. Doran 30 Iowa 521; Sigafoos v. Talbot, 25 Towa 214; Prosser V. Wapello [a] Construction of statute.-The County, 18 Iowa 327: Deaton v. Polk rule should be carefully applied, and County, 9 Iowa 594; Spray v. Thompa statute which is not wholly silent son, 9 Iowa 40; McCune v. Swafford, as to the right of appeal should be 5 Iowa 552. liberally construed in favor of it. Kan. Van Bentham Osage Cook v. Vickers, 141 N. C. 101, 53 SE County, 49 Kan. 30, 30 P 111. 740. Ky. Harding v. Putman, 21 SW [b] Applicability of general stat-100, 14 KyL 677; Crittenden County utes. (1) Although the highway Ct. v. Shanks. 88 Ky. 475. 11 SW 468, statutes of some states are silent as 11 KyL 8: Kimble v. Leischer, 81 to appeals, the right is sometimes Ky. 384; Helm v. Short, 7 Bush 623; held to exist under general statutes, Grider v. Porter, 7 KyL 47. such as those giving generally the La. Cross v. Lafourche Interior right to appeal from decisions of Police Jury, 7 Rob. 121. commissioners. McMahan v. Ruble, Me.-Shaw v. Piscataquis County, Pa.-In re Ohio, etc., Tp. Road, 166 Pa. 132, 31 A 74; Hare v. Rice. 142 Pa. 608. 21 A 976; In re Vacation of Howard St., 142 Pa. 601, 21 A 974; In re Springdale Tp. Road. 91 Pa. 260; In re Widening of Twenty-fourth St., 13 Pa. Dist. 619: Bechtel V. Bechtelville Borough, 3 Pa. Dist. 713; In re Chestnut St., 3 Pa. Dist. 496, 15 Pa. Co. 115; Thorn HIGHWAYS ing it to [29 C. J.] 475 [ý 161] (b) Persons Entitled to Appeal. It is generally provided by the statutes that an appeal may be taken by any person who is interested in the proceedings or aggrieved by the decision rendered therein.55 of appeal is held to belong to every resident taxIn some jurisdictions the right payer in the town, who, as such, is liable to assessment for highway labor,56 but the weight of authority is to the effect that one is not aggrieved so as to entitle him to appeal unless he is interested in, or affected by, the proceedings in some manner Tex.-Huggins v. Hurt, Civ. A. 404, 56 SW 944. 23 Tex. sell, 51 Me. 384; In re Hanson, 51 Wash.-King County v. Neely, 1 Me. 193. Wash. T. 241. Successive appeals, or appeals from the court appealed to, are authorized by some statutes,52 but, in the absence of such statutory authorization, no appeal lies from the decision of the court to which an appeal is first taken,53 unless it has exceeded its jurisdiction.54 ton's App., 34 Pa. Co. 399; In re Grant St., 7 Pa. Co. 84. R. 1. Bosworth v. Providence, 17 R. I. 58. 20 A 97. S. D.-Dell Rapids v. Irving, 9 S. Tenn.- Merritt v. Pryor, 86 Tenn. ler limited in the Bexar County v. Terrell, 14 Taylor v. Travis County, 77 14 SW 137; Galveston, etc., Baudat, 18 Tex. Civ. A. 595, 939; Bell V. Palo (Civ. A.) 29 SW 929; MilPinto V. Wilbarger County, (Civ. A.) 26 SW 245; Galveston, etc., R. Co. V. Baudat, 18 Tex. Civ. A. 595, 45 SW 939. Vt. Landon v. Rutland, 41 Va.-Wilburn v. Raines, 111 334, 68 SE 993; Norfolk, etc., R. Co. Va. V. Rasnake, 90 Va. 170, 17 SE 879; Senter v. Pugh, 9 Gratt. 260; Hancock v. Richmond, etc., R. (50 Va.) Co., 3 Gratt. (44 Va.) 328. 681. - Wash.-Hull Wash. Island 1108. 572, 53 P 669; Pearson V. Minn. Baldwin v. Rosendale Tp., 110 Minn. 87, 124 NW 641; Rosaaen NW 267; Lutgen v. Stearns County, v. Black Hammer, 101 Minn. 317, 112 89 Miss. 302, 42 S 173. 99 Minn. 499, 110 NW 1. Miss. Evans V. Sharkey County, lin, 44 Mo. 216; Bernard v. Callaway 324, 43 NE 330. Pa. Kohler v. Butler County, 31 Ashcraft v. Lee, 79 N. C. 34, Wis. 549, 145 NW 181. 81 N. C. 135; State v. Larkin, 155 [a] ers' court to the superior court, and road cases run from the commissionIn North Carolina appeals in thence to the supreme court. v. Blackwell, 96 N. C. 322, 1 SE 485.Va. 388, 96 SE 776. King 53. Marion County v. Harper, 44 PI11. 482; Jay v. Harford County, 120 Wash. 572, 53 P 669. Wash.-Hull Md. 49, 87 A 521; Cumberland ValStephenson, A 714. ley R. Co. v. Martin, 100 Md. 165, 59 91, 112 NW 248; State v. Geneva, 107 19 Wis.-Morris v. Edwards, 132 Wis. 97 Wis. 96, 72 NW 225. Wis. 1, 82 NW 550; State v. Wheeler, Wis.-State Larkin, 155 549, 145 NW 181; State v. Wheeler, Wis. 97 Wis. 96, 72 NW 225; State v. Goldstucker, 40 Wis. 124 [foll Brock circuit [a] In Illinois a decision of the v. Hishen, 40 Wis. 674]. [a] court, on A mere resurvey is not the establishment county court in proceedings for the sessed for benefits may appeal under appeal from the subject of appeal under [a] A person who has been asgiving the right when a statute Marion County v. Harper, 44 Ill. 482; phia, 6 Pa. Co. 243. of a road, is final. been laid out or altered. a road has Coon v. Mason County, 22 Ill. 666. statutes. Kelly v. PhiladelV. Highgate, 55 Vt. 412. Hogaboon [b] In Maryland (1) the judg-of appeal. [b] An amicus curia has no right [b] Retrospective operation. ment of a circuit court on appeal Ind. 340, 28 NE 702. statute giving to -A from the establishment of Irwin v. Armuth, 129 right landowners of appeal from decisions of Greenland v. Harford County, 68 Md. the by the county commissioners is final. a road selectmen laying out highways will 59, 11 A 581. be construed as proceedings pending at the time of opening streets extending to cision (2) But where a deof its enactment unless such an intent on appeal in the criminal court of the commissioners for of the legislature is clearly mani- Baltimore has been reversed fested. Boston, etc., R. Co. v. Cilley, from city, a further the judgment of the appeal court may be taken to the court of latter appeals. Page v. Baltimore, 34 Md. 558 [overr Rundle v. Baltimore, 28 Md. 356]. Martin, 100 Md. 165, 59 A 714; Web54. Cumberland Valley R. Co. v. ster v. Cockey, 9 Gill (Md.) 92. not right is expressly conferred on it by has no right of appeal, unless such [c] A town, county, or state, (1), statute. Carpenter's Pet., 67 N. H. 574, 32 Mon. (Ky.) 21; Montgomery County Com. v. Dudley, 5 T. B. v. Tipton, 15 SW 249, 12 KyL 847; A 773. (2) In Pennsylvania, a county sessment of damages for land taken has a right to appeal from the asunder the general road laws, under Const. art 16 § 8 and the act of Pa. Co. 84. June 13, 1874. In re Grant Street, 7 [d] Agent or attorney of party ing of Twenty-fourth St., may prosecute appeal. In re WidenDist. 619. 13 Pa. [e] (1) there appeal from of quarter sessions. the Roaring Brook Tp. Road, 21 A 412; In re In re Chestnut St., 86 Pa. 84; In re Chartiers Tp. Road, 1 Mon. 365; In re Allegheny City Pittsb. 67. State Road, (2) But the right is now given by statute. Stauffer v. Lower Swatara Tp., 8 Pa. Dist. 104, 22 Pa. Co. 151. (3) Under the act of April 15, 1891 (P. L. p 17), and the act A person owning land within Ill-Oswego v. Kellogg. 99 Ill. 590; real estate would be affected by the one mile of the proposed road, which of May 26, 1891 landowner in Butler county is (P. L. p 116), Whitmer v. Dry Grove Tp. Highway construction of the road, has been a Comrs., 96 Ill. 289; Imhoff v. Somer-held to have such an actual and subtitled to appeal to the common pleas Whittaker v. Gutheridge, 52 Ill. A. appeal. Fleming v. Hight, 95 Ind. 78. en-set Highway Comrs., 89 Ill. A. 66;stantial interest as to entitle him to from the report of a road jury refusing him damages, although under [aff 123 Ill. 631. 15 NE 30]. 460; Brown v. Roberts, 23 Ill. A. 461 the Local Act of Febr. 11, 1854 (P. L. p 62), applicable to Beaver, But-81 NE 478; Wilson v. Wheeler, 125 ute giving the right of appeal to [f] A corporation owning land on Ind. Ross v. Becker, 169 Ind. 166. son" within the meaning of a statwhich a highway is laid is a "perler, and Lawrence counties, the renort of the jury is final. Ind. 173, 25 NE 190: Yelton v. Addi-every person who considers himself Butler County. 31 Pa. Super. 305. Kohler v. son, 101 Ind. 58; Fleming v. Hight.ggrieved by the decision. 49. Iowa. In re Dugan, 129 Iowa Black f. 594; Lake Erie. etc., R. Co. v 241, 105 NW 514; Pollard v. Dickin- Spidel, 19 Ind. A. 8, 48 NE 1042. Beeler V. Hantsch, 5 May, 27 Barb. (N. Y.) 238. Peo. v. son County. 71 Iowa 438, 32 NE 418; [g] McNichols v. Wilson, 42 Iowa 385. In Wisconsin it is not necesKan-Shurtleff v. sary that the appellants be owners Kan. - Evans 63 Kan. 645, 66 P 654. Chase County, of land affected by the highway, or Kan. 233, 187 P 664; Wilson v. Cloud County. 101 v. Edelbrock, 106 Ky-Big Sandy R. Co. v. Floyd therein, provided they consider themthat they have any special interest County, 87 Kan. 798. SW Flagel v. Jackson County. 83 Kan. 396, 30 KyL 85; Kimble v. Leischer, 126 P 642: Chamberlaine 354. 31 KyL 17; selves aggrieved. 709, 112 P V. Hignite, 622; Kent v. 97 SW 97 Wis. 96, 72 NW 225. State v. Wheeler, County, 42 Kan. 534, 22 P 610. Labette 81 Ky. 384; Com. v. Kimberlin, 8 Minn. 87. 124 NW 641; Peo. v. Cortel56. Okl-Cummings v. Noble County, Baldwin v. Rosendale Tp.. 110 Bush 444. 13 Okl. 21, 73 P 288. Me.-In re Conant. 102 Me. 477, Coe. 19 Misc. 549, 43 NYS 910; Smith you, 36 Barb. (N. Y.) 164; Matter of 67 A 564, 120 AmSR 512; In re Rus- v. Harkins, 39 N. C. 486. 95 Ind. 78: differently from the public, citizens, and taxpayers 57. Ky. Com. v. Dudley, 5 T. B. Mon. 21; Taylor v. Brown. 3 Bibb 78; Barr v. Stevens, 1 Bibb 292. Del. In re Long Point Road, a refusal of the highway commis- | 672, 38 NE 933; Roosa v. Henderson 5 Del. 152. sioners to open the road. Butler County, 59 Ill. 446; Sangamon Iowa.-McCune V. Swafford, 5 Grove Highway Comrs. v. Barnes, County v. Brown, 13 Ill. 207. Iowa 552. 195 Ill. 43, 62 NE 775. Ind. Kelley v. Augsperger, 171 62. Foster v. Dunklin. 44 Mo. 216; Ind. 155, 85 NE 1004; Kirsch v. Goldman V. Grainger County Jus-Braun, 153 Ind. 247, 53 NE 1082: tices, 3 Head (Tenn.) 107, 108. Wilson v. McClain, 131 Ind. 335, 20 NE 1093; Anderson v. Claman, 123 Ind.. 471, 24 NE 175; Tomlinson v. Peters, 120 Ind. 237, 21 NE 910: Jones v. Duffy, 119 Ind. 440, 21 NE 348; Neptune v. Taylor, 108 Ind. 459, 8 NE 566; McKee v. Gould, 108 Ind. 107, 8 NE 724; Freshour v. Logansport, etc.. Turnp. Co., 104 Ind. 463, 4 NE 157. Mass. Grainger N. H. Bennett v. Tuftonborough, 72 N. H. 63, 54 A 700. Tenn. Goldman v. County Justices, 3 Head 107. W. Va.--Wood County Ct. v. Boreman, 34 W. Va. 87, 11 SE 747. "The petitioner has no interest above any other citizen. He is only the informer, or relator, and barely brings the matter to the notice of the court, for its consideration. This does not make him a party, or invest him with any interest in the matter above others." Goldman v. Grainger County Justices, supra. 63. Gray v. Jones, 178 Ill. 169, 52 NE 941; Smith v. Scearce, 34 Ind. 285; Underwood v. Bailey, 56 N. H. 187; Peo. v. Cortelyou, 36 Barb. (N. And see Moore v. Hancock, 11 Ala. 245 (holding that no individual has the right to intervene and put ques-Y.) 164, 169. tions on the record by bills of exception, under a statute giving the privilege of bills of exceptions only to parties to a suit and in the trial of a cause). 58. Ala. Parnell V. Dallas County Comrs. Ct., 34 Ala. 278; Moore v. Hancock, 11 Ala. 245. Ark. McMahan v. Ruble, 135 Ark. 83, 204 SW 746. Del.-In re Long Point Road, 5 Del. 152. Ill. Hegenbaumer v. Heckenkamp, 202 Ill. 621, 67 NE 389; Gray v. Lott, 18 Ill. 251. Ind. Heath v. Sheetz, 164 Ind. 665, 74 NE 505; Pittsburgh, etc., R. Co. v. Wolcott, 162 Ind. 399, 69 NE 451; Leffel v. Obenchain, 90 Ind. 50. Iowa.-McNichols V. Wilson, 42 Iowa 385. Ky. Chamberlaine v. Hignite, 97 SW 396, 30 KyL 85. La.-Vacoune V. Police Jury, 1 Mart. N. S. 596. Me. Conant, Appellant, 83 Me. 42, 21 A 172. Minn. Miss. Evans V Sharkey County, 89 Miss. 302, 42 S 173. Mo.-Cooper County v. Geyer, 19 Mo. 257. N. H. Union School Dist. v. Keene, 63 N. H. 623, 7 A 380; Underwood v. Bailey, 56 N. H. 187. - N. Y.-Peo. v. Schell, 5 Lans. 352. Or.-Gaines v. Linn County, 21 Or. 430, 28 P 133. Pa.-Kohler v. Butler County, 31 Pa. Super. 305. a "The party who initiates such proceeding, and fails before the commissioners, should certainly be allowed to prosecute his appeal from the adverse determination. This seems too plain for argument. The applicant, however, need not be an owner of lands through which the road is proposed to be laid. He need have no special interest in the proposition to lay out, alter or discontinue the highway in question." Peo. v. Cortelyou, supra. [a] Where a petition for a public road is granted, the petitioner is not entitled to appeal, as he has obtained the very thing which he sought. Gray v. Jones, 178 Ill. 169, 52 NE 941 [aff 78 Ill. A. 309]. 64. Lowndes County Comrs. Ct. v. Bowie, 34 Ala. 461; Lafollette V. Road Comr., 105 Tenn. 536, 58 SW 1065. Ky. Heim v. Short, 7 Bush 623. Me.-Moore's App., 68 Me. 405. Mo.-Platte County Ct. v. McFarland, 12 Mo. 166; Webster v. Spindler. 36 Mo. A. 355. Nebr.-Jones v. Daul, 5 Nebr. (Unoff.) 236, 97 NW 1029. Oh.-Anderson V. McKinney, 24 Oh. St. 467. Pa. In re Second St., 161 Pa. 571, 29 A 294; Irwin's App., 7 Pa. Super. 354. Tenn.-Evans v. Shields, 3 Head 70. 67. Ind. Kelley V. Augsperger, 171 Ind. 155, 85 NE 1004. Iowa.-McNichols V. Wilson, 42 Iowa 385. Ky.-Helm v. Short, 7 Bush 623. Nebr.-Jones v. Daul, 5 Nebr. (Unoff.) 236, 97 NW 1029. Oh.-Dwiggins v. Denver, 24 Oh. St. 629. Or. Geo. Palmer Lumber Co. v. Wallowa County, 60 Or. 342, 118 P 1013. Pa. In re Cheltenham Tp. Road, 11 Pa. Co. 671. 65. See statutory provisions. [a] A judgment of an interme[a] In Iowa (1) the statute in diate court disposing of an appeal force in 1870 provided that appeals thereto is final within the meaning should be allowed in rcad cases from of the rule. Hall v. McDonald, 171 Krenik V. Cordova, 95 all decrees and decisions "on the Ind. 9, 85 NE 707; Helm v. Short, 7 Minn. 372, 104 NW 130. merits of any matter affecting the Bush (Ky.) 623. rights and interests of individuals [b] Conditional order. — (1) An as distinguished from the public, in-order establishing the road on concluding an intermediate order involv-dition that the assessed damages be ing the merits and necessarily affect-paid by the petitioners is final and ing the decree or decision." Warner appealable, although conditional. v. Doran, 30 Iowa 521. (2) An order McNichols v. Wilson, 42 Iowa 385; of the board of commissioners re- Dwiggins v. Denver, 24 Oh. St. 629: fusing to appoint appraisers to as- Hammer v. Polk County, 15 Or. 578, sess damages was an intermediate 16 P 420. (2) But there is authority order involving the merits of the to the contrary. Roosa v. Henderson claim for damages, and therefore County, 59 Ill. 446. within the statute allowing appeals. Warner v. Doran, 30 Iowa 521. (3) An order of the board of commissioners entirely disallowing a claim for damages was also appealable. Vancleave v. Clark. 37 Iowa 184. But under a statutory provision authorizing the county auditor to act in the matter of establishing highways, subject to the final approval of the board of supervisors, an apButler Grove Highway Comrs. peal does not lie from an order of v. Barnes, 195 Ill. 43, 62 NE 775; such auditor, but lies only from the Bloomington Highway Comrs. v. final action of the board of superQuinn, 136 Ill. 604. 27 NE 187 [overr visors. Newell v. Perkins, 39 Iowa Whitmer V. Dry Grove Highway 244. Comrs., 96 Ill. 289, and impliedly [b] In Virginia an appeal may be overr Oswego V. Kellogg, 99 Ill. had as of right from an interlocu590]; Taylor V. Normal Highway tory order of the county court in a Comrs., 88 Ill. 526; Vacoune v. Po- controversy concerning the establishlice Jury, 1 Mart. N. S. (La.) 596; ment of a road. Jeter v. Board. 27 Foster v. Dunklin, 44 Mo. 216; Over- Gratt. (68 Va.) 910 [dist Trevilian beck v. Galloway, 10 Mo. 364. v. Louisa R. Co., 3 Gratt. (44 Va.) [a] An owner of land not ad-312; Hancock V. Richmond, etc., joining a proposed road cannot ap- R. Co., 3 Gratt. (44 Va.) 326]. peal in Illinois to supervisors from Ill-Ravatte v. Race, 152 III. Tex.-Huggins v. Hurt, 23 Tex. Civ. A. 404, 56 SW 944. Wis.-State v. Geneva, 107 Wis. 1, 82 NW 550. 59. Brown v. Beard, 153 Ky. 563. 156 SW 152; State v. Geneva, 107 Wis. 1, 82 NW 550. 60. Barr v. Stevens. 1 Bibb (Ky.) 292; Gaines v. Linn County, 21 Ör. 430, 28 P 133. 61. 66. (4) [c] Orders held not final.-(1) Intermediate rulings of the board of commissioners. Frankfort Constr. Co. v. Sims, 185 Ind. 71, 113 NE 298. (2) An order of county commissioners approving a petition for the improvement of highways appointing an engineer and viewers. Nisius v. Chapman, 178 Ind. 494, 99 NE 785. (3) An order dismissing a petition to dismiss the appointment of a jury of review. In re Newtown Tp. Road, 62 Pa. Super. 519. (4) An order setting aside the report of road viewers, on the ground that they did not begin their work at the place mentioned in their posted notice, thus misleading parties. Irwin's App.. 7 Pa. Super. 354. (5) An order merely ascertaining the amount of the damages to be assessed on a given tract, but not determining whether the claimant is the owner of the land or entitled to the damages. Jones v. Daul, 5 Nebr. (Unoff.) 236, 97 NW 1029. |