Harper v. Richardson

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. The complaint in this case, which is duly verified, avers that the plaintiff is the owner of a tract of land; that a petition was duly presented to the Board of Supervisors of the county where the land is situated, praying for the opening of a road on a route across his land; that viewers were duly appointed to assess the damages done to private property by such location; that he remonstrated against [253]the proceedings, and filed his claim for damages in the sum of three hundred dollars ; that on the thirteenth day of June, 1862, the viewers reported, recommending the opening of the road, hut awarded no damages to the plaintiff on his claim; that on the fourth day of August, 1862, the Board of Supervisors ordered the road to be opened; that he has never waived his right to compensation, and never received any, and no provision has been made for paying him; and that, unless restrained, the road overseer, Richardson, will proceed and open the said road across his land, and concludes with a prayer for an injunction. A temporary injunction was granted. The answer admits the material facts stated in the complaint, and avers that the viewers duly assessed and reported all the damages sustained by private individuals by reason of the location of the road, and that on the fourth day of August, 1862, the Board of Supervisors proceeded to consider all matters touching the original petition and all subsequent proceedings thereon, in connection with the report of the viewers, and the evidence introduced by interested parties, and duly confirmed the report of the viewers, established the road as a public highway, and allowed all the damages sustained by individuals by reason of the location of the road; that the road is of great value to the plaintiff, and has enhanced the value of his land, by affording him the means of access thereto ; and avers that the plaintiff’s action is barred, and he has dedicated the land to public use, by failing to bring his action within the ten days prescribed by the Act of 1861 respecting roads. The defendants moved to dissolve the temporary injunction, which was refused, and the defendants take this appeal from the order refusing to dissolve the injunction.

The Road Law of 1861 (Stat. of 1861, 389) provides that, “ If any person or persons, claiming damages on account of the location or alteration of any road under the provisions of this act, shall be dissatisfied with the award of the road viewers, and cannot agree with the Board of Supervisors as to the amount of damages sustained, and shall refuse to receive the same, such person or persons shall, within ten days from the time of final hearing, commence an action against the county, by name, for such damages, in a Court of competent jurisdiction, which action shall be conducted