Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1868-12-26

in cunncr'iun with -ce,inn IL. of the act Of
lsJi turu.l,s the guide fsg prosecuting IN
afgsnl in sarh ras-s and that srefiDn -, u
III. ssf r-lsting I" County Commissioners. ap
,,rv.d january 2isi. 1857. pry---rii-- the time
within whirh the sif-~l MO VI takes and
the r,nnas'r IT giving nsire.
The 6ssi step. then to lie tskso l.y 6orrSM
claiming that H. world In. isjarsa by ~ -
ing n . rad arr ~ hi- lana. IL 70 maus ca
plaini In writing to the Cssnniisaisnsss -
ting fssth his damages and s,Cejfs ing in what
r-y.vt he will L.. injured This mus, IT, d"nc
within six monihs after the Lra,ion ii the
r~d. IL IN then the duty 81 tho Commission
cr~ o. cause the amount IL damages q, IT, ~
s--->-l 10y thr-r DISTINGUISHED bousrl,oldcrsL II
thu, complainant is not content with the amount
If damages awar,lss!. he must within twenty
days give the Roiice Of APPEAL anil tho hood
rs rruin.l by .sc,i''" ~ II ting srt approved
January 2lst, 1867.
The sulscqucnt prrscdings. We think:
| should csn,furm Substantially b. the laws rcxw-
laiing appeals TO the District Cour fr'n, Jas
tees If the Peace.
| From the recsrL bsCsre M in this case. il
appears that Nicely made complaint in Au-
gust. 1881, u the Commissioners. Ginning
that he would bc damaged in a larg,. amount
| aplaar hUw much he claimtsi ~ In what re-
, sweet l,c would bc injured nor dues il appear
that any complaint. or c"ly " any. was bc-
foro the District Count on the trial. How any
issue chuld lc formed in tho District Court
| without this PAPER. Il II not easy Ia scc The
County. however. appeared and went to trial
| without making any objection. Whether or
not the fact VI appearance without objection
opcrsted q q waiver Of the defect indicated. II
the case must turn upon another point. Pro
lmbly the defect alluded tO can DO cured by
an,cndnHnt in the Court below.
COncc1ing. then. that the appeal was rcgu
lnrly taken, and that tho same question was pro
pcrly before the District Court fer trial, the
next inquiry Is. what was that question! II
IL claimed by tho plaintiff in error that tho
amount Of damages sustained by Nicely by
opening the road OH his land was the question
to be tried, aud that the Court hal no author
ity to submit to the jury tho question. 'lN you
approve or disapprove the location Of tho road
| in controversy
On the other hand, It is claimed by tho de-
| fcndant in error. that the appeal from the
Commissioners Court brought up not only tho
question Of damages, but all other questions
relating to the action Of tho Commissioners.
from first to last i'm establishing the road. and
that il was competent for the Court to submit
|
tn them. We arr clearly Of the opinion that
the only triablc question on the appeal taken
| by Nicely was the amount Of damages he
would sustain by reason of tho road running
| across his land. We are also Of the opinion
that the road law does not allow appeals from
the action Of the Board Of Commissioners in
any other matter relating to the location and
opening Of County roads.
The public must have roads to travel on. and
lu.. .I,1sr
lishcd them in pursuance Of law, a complain
ant over whose land they run can Hsscrt his
| right to damages. Int cannot call in question
| the ri0ht of the Commissioners to locate and
OIs1, public roads. This il apparent from the
road law itself. rs well M from tho general
| law Of easements and Of eminent domain. In
saying TINT no appeal Is SLOWED by tho road
law froiS tho action Of TIM I&,srl of Commits
sioncrs. except in the matter Of damages oc
casioncd by opening the road, VIZ mus not be
understood to say that the proceedings IF thr
CommissiOnersin locating and opening County
roads may not bo reviewed and controlled by
| a higher Court Ii Irregular or crroncons. We
only say that MI appeal is not the proper RENE
| dy In such cases. II tho proceedings II the
Commissioners arr not in conformity to the
| statute law, the common law remedy by writ
| of rtrtiordrf may Ike r~sortcd to- II the Com.
missioners arc acting ia matters over which
| ton. arc exceeding their authority. writ Of
prohibition may bc the proper r,mcdy. The
remedy depends upon the facts and circum-
stances Of each particular case. In some eases
| the writ of injunction may he used
The fact that our statute has provided that
appeals may he taken to the District Court
! from decision Of the Board Of County Com
| mssioners in the various matters over which
they have Jurisdiction does not deprive the
District Court Of tho power to review and con-
| troll their illegal action by writ Of certiOruT,
prohibition. or other proper process.
These remarks may. perhaps, lie considered
as outside Of the case now before tho Court,
hut We have thought it proper to make thom
as matter Of general intcrcst to the lar and
to tho public
From tho view We have taken of tho law
governing this case. it follows that the only
question which should have been presented tn
tho District Court to be tried and determined
an appeal. was the amount Of damages sus-
| tanned by the appellant, and that it was error
| TO submit tn the jury the question whether
they approved or disapproved tho location Of
the road. The judgment Of the Court below
must therefore he reversed and the case rc-
mandcd for new trial. 5
JUDGMENT.
This cause having been heard and consid-
cred, and the Court being fully advised in tho
premises, Il il considered and aaljudgcd by
the Court that the judgment Of the Court be.
low be and the same il hereby reversed, and
that ID. A. Ncoly ray tho costs made in prOso-
cutting the writ Of error, aud that execution
issue from this Court therefor. And it Is or.
dercd that tho casc be rcmandcd TO tho Court
below for . new trial upon the single issue Of
fact a to the amount Of damages which d. A.
Nicely will sustain by the opening If tho rad
through his land. the costs accrued and accru.
ing In tho District Court to abide the final re-
sult In that Court. .'Den.' 3.a' 60 llr faa
bfat. ,..,t..s.-a o. -s,ff az ,' "A
J. g. SiMrsox, Plaintiff in Error,
BaowH Baos. / Co., Ders In Error.i i,'3 .s
|. Error from Frat Judicial District.
wycHE, Associate Justice delivered the
opinion Of the Court.