Legal Opinion

Bennett v. Fisher

Supreme Court of Iowa

Decided January 30, 1868PublishedCited by 5 opinions

Appeal from Polk District Court. County roads : curattvr act of 1868. — The plaintiffs are owners of land through which a county road was established by the board of supervisors, October 15, 1867. The defendants are the road supervisors and the township clerk. The present suit was commenced after the “Act to legalize the establishment of county roads” (Laws of 1868, p. 40, copied in note*), went into effect.

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Appeal from Polk District Court. County roads : curattvr act of 1868. — The plaintiffs are owners of land through which a county road was established by the board of supervisors, October 15, 1867. The defendants are the road supervisors and the township clerk. The present suit was commenced after the “Act to legalize the establishment of county roads” (Laws of 1868, p. 40, copied in note*), went into effect. The petition alleges that the highway in question was not legally established, is no highway, and prays an injunction to restrain the defendants from proceeding to open the same. A…

1Opinion of the Court

Dillon, Ch. J.

1. roads : establishment of: delegation of power tp clerk. The road in question was established by the board of supervisors, and not by the clerk. But the commissioner to view the same, was appointed dj the clerk m vacation, and not by the board. In The State v. Kimball (23 Iowa, 531), we held that this could not be done, since, in our judgment, the act of April, 1860 (“in relation to roads and highways,” Rev. §§ 327, 328) did not intend to dispense with section 828 of the Revision, which requires the board to appoint the commissioner when in session, or at a day then to be…

2Cases cited1 opinion

  1. State v. KimballSupreme Court of Iowa · 1867

3Cited by5 opinions

  1. Iowa Railroad Land v. SoperSupreme Court of Iowa · 1874
  2. City of Davenport v. D. & St. P. R.Supreme Court of Iowa · 1873
  3. Tilton v. SwiftSupreme Court of Iowa · 1874
  4. Wakeley v. Douglas CountyNebraska Supreme Court · 1922
  5. Heinszen v. United StatesUnited States Court of Claims · 1907

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