
    Elizabeth Masters v. J. H. McHolland and others.
    July Term, 1873.
    1. Counties: County Commissioners: Conduct of Business. In proceeding to open and lay out a public road, after the report of the viewers, has been filed in the county clerk’s office, the county commissioners are? not compelled to take final action thereon at their first meeting, but may postpone such action until some subsequent meeting, without losing-jurisdiction. 
    
    
      2. -: Rules. The county board has power to make rules and regulations for the transaction of its business; and, in the absence of proof to the contrary, any postponement will be presumed to have been made in conformity to those rules and regulations.
    *18 *8. Litigant: Duty of. A party having a matter in litigation before any tribunal must, in order to protect his rights, be present at every session of that tribunal at which the controversy may be determined until it is finally disposed of. [Turner v. Miller, 28 Kan. 50; National Bank v. Wentworth, Id. 193; Green v. Bulkley, 23 Kan. 135.]
    4. Roads and Highways: Damages: Eminent Domain. One having a right to compensation for land taken for public use, must to enforce that right, pursue the remedy provided in the statute, and, failing to do that, cannot enjoin the taking of the land on the ground that no compensation has been made.
    5. -: Public Road. The fact that a road has no outlet or egress at one end, and that it primarily and principally benefits only a single individual, does not destroy its character as a public highway, nor prevent the public from taking private property for it. [Cemetery Ass’n v. Mes-singer, 14 Kan. 316.]
    Error from Leavenworth district court.
    Injunction, brought by Masters, as plaintiff, against J. H. McHolland, as township trustee, Theodore Myers, as road overseer, and the Board of County Commissioners, to enjoin the opening of a certain road through plaintiff’s land. The district court, at the May term, 1872, found in favor of the defendants and dissolved a temporary injunction previously granted.-
    
      H. T. Oreen, and H. M. Herman, for plaintiff in error.
    Section 6 of the road law (Gen. St. 1868, c. 89) provides “that the report of the viewers shall be delivered to the county clerk on or before the first day of the session of the commissioners then next ensuing; and it shall be the duty of the commissioners, on receiving the report of the viewers aforesaid, to cause the same to be read before their meeting, and if no legal objection shall be made to said report, or sustained by a majority of the board of commissioners, and they are satisfied that such road will be of public utility, and the report of the viewers being favorable thereto, they shall cause said report, plat, and survey to be recorded, and thenceforth said road shall be a public highway.” This the county board did not do. They laid the report on the *table September 17,1871; and by not complying with the law, and acting upon said report, was equivalent to its rejection. Mrs. Masters was not compelled to appear, either in person or attorney, at every meeting or session of the county board and watch their proceedings, in order to contest the opening of that road and save her right of appeal. There is nothing in law which gives the county board authority to lay the report on the table or defer action until some future time. They must strictly pursue the power, precisely as it is given. And she had a right to believe, when the report was not recorded, or a road ordered open, that the report was rejected. People v. Richmond Co., 20 N. Y. 252; Baldwin Road, 3 Grant, Cas. 63; Shaffner v. City of St. Louis, 31 Mo. 264; Keech v. People, 22 111. 478. A report of viewers must be made at the next term after the order is made, and, when their report is so made, must be acted on that term. The approval at the fifth term or monthly meeting thereafter, and subsequent confirmation, was irregular and void. Ghartiers Tp. Road, 48 Pa. St. 314; Paradise Road, 29 Pa. St. 20; Gibson’s Mill Road, 37 Pa. St. 255. If they had power to act five months after the viewers made their report, they had five years after. They were compelled to give her notice before acting upon the report. The law gives her the right of appeal; how could the right of appeal be exercised when she was not notified? Dickey v. Tennison, 27 Mo. 374. Persons whose rights are affected against their will must have notice; it is indispensable. Stone v. City of Boston, 2.Mete. 220; Todd v. Rome, 2 Me. 55; Case v. Myers, 6 Dana, 330; Curran v. Shattuck, 24 Cal. 427; Pond v. Town of Milford, 35 Conn. 36; Shaffner v. City of St. Louis, supra; Cooley, Const. Lim. 559-565. The record does not show a motion to take the report from the table or to refer to the committee on roads and bridges. Where did they get their authority to report upon the matter? Not from the county board, for there is no record of any such action. Nothing can be inferred from the record. Bethel v. Oxford Co., 42 Me. 480. Jurisdiction must be shown, and, if not shown, their record can be collaterally attacked.
    Highways are created by the right of eminent domain, through the powers delegated by the legislature. They are ^powers to be exercised in derogation of common law. They are powers to take property from one person and transfer them to another, although the object to be achieved is a public benefit, or a useful public improvement. Whatever the legislature may have deemed essential must be executed precisely as it is given. The law is satisfied with nothing less, and where the law is not strictly pursued all the acts are void. The county board lost jurisdiction when they laid the report of the viewers on the table. Crossley v. O’Brien, 24 Ind. 325; Doughty v. Hope, 3 Denio, 249; Town of Geneseo v. Harper, 38 111. 104; Adams v. Saratoga & W. R. Co., 10 N. Y. 328; Bensley v. Mountain Lake W. Co., 13 Cal. 306; Shaffner v. City of St. Louis, supra. One of the fundamental principles of this government is that private property shall not be taken for public use without compensation, and that private property cannot be taken for private use with or without compensation, without the consent of the owner. Due notice must be given of such proposed taking. Notice of the action of the county board, in February, 1872, was not given, nor was any compensation allowed. The action of the county board is unconstitutional and therefore void. McCann v. Sierra Co., 7 Cal. 121; Warren v. Bunnell, 11 Yt. 600; Evansville & C. R. Co. v. Dick, 9 Ind. 433; Ware v. Penobscot Co., 38 Me. 492; Wallace v. Karlenowefski, 19 Barb. 118; Johnson v. Alameda Co., 14 Cal. 106; Ferris v. Bramble, 5 Ohio St. 109; Hall v. Jones, 21 Md. 440; Chartiers Tp. Boad, supra. Roads cannot be established without consent of the owner, without compensation; nor can the legislature delegate authority for the establishment of roads without compensation. Nesbitt v. Trumbo, 39 111. 110; 13 Ark. 8; McCauley v. Dunlap, 4 B. Mon. 58; Curran v. Shattuck, supra; Hall y. Boyd, 14 6a. 1.
    Where no adequate compensation is awarded, the owner is entitled to an injunction restraining the opening of such road. Batelle v. Bridgman, 1 Iowa, 363; Curran v. Shattuck, supra.
    
    The road petition asks for a road eighty rods in length. Plaintiff claims this to be a private road, and that there is no constitutional power to take her property, with or without compensation, without her consent, for such a purpose. The road was of no use to any one but Thomas, not necessary for the public, and could not be a thoroughfare. It is a question for the courts as to what is such a public use as will justify the exercise of the power of eminent domain. 2 Kent, Comm. 340; *Concord R. R. v. Greely, 17 N. H. 47; Sedg. Const. Law, 155; Hansen v. Vernon, 27 Iowa, 28; Taylor v. Porter, 4 Hill, 140. Private roads cannot be laid across the lands of unwilling parties by the exercise of the right of eminent domain. Cooley, Const. Lim. 530. A road to which the public can have no access from one thoroughfare to another cannot, in the nature of things, be public, and at most would serve only for private convenience. Woodyer v. Hadden, 5 Taunt. 126; State v. Price, 21 Md. 449; Austin’s Case, 1 Vent. 189; 1 Hawk. P. C. c. 76, § 1. Commissioners have no authority or power to lay out a road if, when laid out as directed, it cannot from its situation become a public highway, as where it ends on a private inclosure. In re Sandy Lick Creek Road, 51 Pa. St. 94; Dickey v. Tennison, supra; State v. Price, supra; People v. Van Alstyne, 32 Barb. 131; Banard v. Haworth, 9 Ind. 103. There can be no public highway where there is no thoroughfare. Woodyer v. Hadden, supra. Wellb. High. 1. The convenience of a single individual does not authorize the establishment of a public road. Fletcher’s Heirs v. Fugate, 3 J. J. Marsh. 631. The establishment, except for public good, is illegal. Gurnsey v. Edwards, 26 N.H. 224.
    
      F. P. Fitzwilliam and J. W. Taylor, for defendants.
    Did the county board, having obtained jurisdiction to establish this road, lose its jurisdiction by reason of having, on the seventeenth of September, 1871, laid the viewers’ report on the table, and taking it off the table on the fifth of February, 1872, and then adopting said report 7 The board is expressly authorized to establish rules and regulations to govern the transactions of its business. Section 25, c. 25, Gen. St. 257. The presumption is that their action was in accordance with some rule or regulation of the board. Jurisdiction having attached, it would not be lost by an irregularity in the subsequent proceedings of the board, and the proceedings of the board cannot be questioned in this collateral proceeding. There is nothing in the statute, nor in the «reason of the thing, to prevent the commissioners from completing the laying out, atan adjourned or subsequent meeting, said road, and then making it of record. Westport v. County of Bristol, 9 Allen, 203.
    The notices that were given and that were required *u'nder the statute gave the right to plaintiff to claim damages. She had the right to appeal from the action of the board, if she. were dissatisfied with their action. She was bound to take notice when the board was in session and what was done. Baldwin Eoad, supra. For they are required to keep a record of their proceedings, and are required to “sit with open doors, and all persons can attend their meetings.” Gen. St. c. 25, § 25. Even if the action of the board in any manner affected the plaintiff, it could only be on the question of damages. The action of the board, in reference to the proceedings to adopt the report of the viewers, is separate and independent from the proceedings to reverse the report of the viewers on allowance of damages. From the action of the board in adopting the report of the viewers, and declaring the road a public highway, no appeal is allowed. From the action of the board in disallowing damages the plaintiff had the right of appeal. Gen. St. c. 89, §§ 6, 7. The board having jurisdiction, its action in finding that the road in controversy was of public utility, and declaring it a public highway, was, for the purpose of this action, conclusive. The propriety of taking the plaintiff’s property for public use was not a judicial question, but one of political sovereignty, with which the court below had nothing to do. Cooley, Const. Lim. 532; Ford v. Chicago & N. W. E. Co., 14 Wis. 617; People v. Smith, 21 N. Y. 595.
    As to the question that the road was not and could not be declared a public highway, because the road had no egress at one end, see Bank-head v. Brown, 25 Iowa, 546; People v. Kingman, 24 N. Y. 565; Ferris v. Bramble, 5 Ohio St. 113; Sherman v. Burck, 32 Cal. 251; Proctor v. Andover, 42 N. H. 348.
    On the question of compensation, our answer is that the legislature having provided a means of redress, the plaintiff is restricted to that mode of proceedings alone. Dunlap v. Pulley, 28 Iowa, 469.
    Even if the plaintiff has a valid cause of action for her alleged grievance, injunction is not the proper remedy. The ordinary remedy for the redress of such a grievance is a common action at law; and, without some extraordinary feature, a court of equity would have m> jurisdiction of the case.
    
      
       Every court, except when limited by statute, has power to continue proceedings before it from term to term. This is one of its inherent powers. Smith v. Eureka. Bank, 34 Kan. 531.
    
   *Brewer, J.

Plaintiff in error brought her action to enjoin the opening of a road. The case was tried by the court, special findings of fact made, and judgment rendered for defendant. It was admitted on the trial that the proceedings for the opening of the road were in form and legal up to the action of the county board on the seventeenth of September, 1871. The plaintiff, the owner of a portion of the land taken for the road, appeared before the viewers, and claimed $400 as damages. The report of the viewers was favorable to the road, and they recommended an allowance of $50 to plaintiff. On the seventeenth day of September, 1871, at a session of the board ■of the county commissioners, the committee on roads and bridges reported back to the board the report of the viewers, and recommended that it lay on the table, which report was adopted. On the fifth of February, 1872, the board took said report from the table, and adopted the report of the viewers, and declared said road to be of public utility, ■and caused said report, survey, and plat to be recorded, and issued their order to Theodore Meyers, the then proper road overseer, directing him to cause said road to be opened for public travel. No road damages were allowed by said board to plaintiff. On the twentieth •of February, 1872, the county clerk duly issued and delivered to the road overseer of the district a written notice to open said road, and, in pursuance of said notice and order, the defendants were proceeding to open said road when this suit -was commenced. The last two findings made by the trial, court were as follows:

“The plaintiff had no notice or knowledge of the action of the board •of county commissioners on the fifth of February, 1872, nor until more than ten days thereafter.

“Said road is eighty rods in length. It has no opening or outlet ■at its north end, but does lead from its north end along and on the line between the land of the plaintiff and one Baskers into a public •highway, thus affording the defendant Thomas an outlet to a public road. ”

Upon these facts three principal questions arise. The first *is whether the board, having obtained jurisdiction to establish this road, lost such jurisdiction by reason of having, on the seventeenth of September, 1871, laid the viewers’ report on the table, and taken no further action thereon until the fifth of February following. In other words, must the county board act at once, or at the then pending session, upon the report of the road viewers, or postpone it to a day certain, or can they, without losing power to act, pass it over indefinitely by laying it on the table ? The question, it must be borne in mind, is one of power, and not of propriety. We are not sitting as a reviewing court to reverse or affirm the determination of the county board, but are asked to pronounce that determination void as ultra vires. It is conceded that it had jurisdiction on the seventeenth day of September, 1871, and that it could by an order of that •date have established a legal and valid road. It did not dismiss the proceedings on that day, nor pretend to make any final disposition. It assumed the right to continue its jurisdiction with a view to final ■disposition at some other time.

The board is authorized to establish rules and regulations for the-transaction of its business. Gen. St. c. 25, § 25. In the absence of any proof to the contrary, it must be presumed that the postponement and the subsequent action were in conformity to its established rules. If, then, as against its own assumption of power, it lost jurisdiction, it must be because, either from the nature of the case, or the requirements of the statute, final action at the time was necessary. There is certainly nothing in the nature of the ease that would compel final action at once, or prevent a postponement. It might often work a hardship on parties interested to return at a different time. That happens in the proceedings of all tribunals. On the other hand, it-might as often happen that the interests of parties would be more fully protected, and more exact justice done, by postponing final action until after further information. Nor does the statute compel final action at once. The time for the meeting of the viewers is prescribed; that is, the *day named in the order, or within five-days thereafter. The time within' which the report, plat, and survey must be delivered to the county clerk is fixed; that is, “on or before the first day of the session of the commissioners then next ensuing.” But there is nothing prescribing how soon or at what meeting the board must act. Its duty is defined and the manner of its performance, but the statute is silent as to the time. Gen. St. c. 25, §§ 5, 6. The particular clause of section 6 upon which counsel for plaintiff rely is as follows: “And it shall be the duty of the commissioners, on receiving the report of the viewers aforesaid, to cause the same to be read before their meeting, ” etc. Counsel argues very plausibly that “on” is equivalent to “immediately on,” and excludes the idea of any delay or postponement. We do not think such is the sense in which it is used. Power is given to the board to take final action with reference to the opening and laying out of roads, after the report of the viewers has been filed, and such action can be taken at such time as the rules and regulations of the board may prescribe. Otherwise, the first duty of the board at each meeting would be to dispose of the various road reports filed during the interim, and road matters would be given a preference over other and far more important questions of county administration.

But, say counsel, “Mrs. Masters was not compelled to appear either in person 'or attorney at every meeting or session of the county board, and watch their proceedings, in order to contest the opening of that road, and .save her right of appeal.” Every one having a matter in. litigation before any tribunal, court, or county board, must in order to protect his rights, be present at every session at which the controversy may be determined, until there is a final disposition. He stays away at his peril; and if, during his absence, the matter is disposed of, he can blame no one but himself. This in many cases is a great hardship. Many a suitor in the courts has felt it to be so, yet no-remedy therefor has as yet been devised. “If the board may delay for five months, it may for five years,” again argue counsel. True; *but that power may be abused, is no reason for denying the existence of the power. This possibility of delay is as true of courts as of county boards; but who questions the power of a court to continue or postpone? Mandamus may be invoked, perhaps, to compel action; but jurisdiction is not lost by improper continuances. The case of Inhabitants of Westport v. Bristol Co. Com’rs, 9 Allen, 203, is authority on this general question.

A second objection to the validity of the proceedings of the county board is that no compensation was awarded, and that, as private property cannot be taken for public use without compensation, the whole proceeding must fail, and the opening of the road be restrained. ‘This is really disposed of by the decision of the previous question; for, if the board had power to act-, its determination cannot be avoided in this collateral way by showing that it erred in fixing the value of the property taken. Whatever rights of compensation the plaintiff may have must be pursued in the remedy prescribed by statute. If the tribunal empowered to act decides against her, and she fails to appeal therefrom, she is like any other suitor who neglects to avail himself of the means of relief provided in the law. The finding of the court that she had no notice nor knowledge of the action of the board in ordering the opening of the road, and refusing her compensation until the time to appeal had passed, avails nothing. Having been once legally notified of the proposition to open the road, and the matter having been once fully brought within the jurisdiction of the county board, she must take notice of their subsequent action, or suffer the consequences of her inattention. McCrory v. Griswold, 7 Iowa, 248; Connelly v. Griswold, Id. 416; Dunlap v. Pulley, 28 Iowa, 469.

The other point made by counsel is that this is a private and not a public road, and therefore not within the power of the county to condemn lands for. It appears from the findings that the road is a short one, without outlet or opening at one end, but at the other opening *into an unquestioned highway, and affording one of the defendants an outlet from his farm. Neither the findings nor the testimony show that this was other than a public road. Its condemnation was sought in the ordinary proceedings for condemning public roads. It was pronounced by both viewers and county board, of public utility. The expense of opening is borne by the public. All damages assessed would have to be paid by the public. It affords one citizen at least a means of communication with the balance of community, and the balance of community a means of communicating with him. As was well said by Mr. Justice Dillon, in Bankhead v. Brown, 25 Iowa, 540: “Taking so much of A.’s land as may be necessary to establish a public highway to enable B. to have an outlet to the market, and to put him in communication with his neighbors, with the town, with the church, with the school, etc., is not, in a just sense, (although B. be the person primarily and even principally benefited,) the taking of A.’s property for the private use of B., but for the general good.” See, also, People v. Kingman, 24 N. Y. 559; Ferris v. Bramble, 5 Ohio St. 109; Sherman v. Buick, 32 Cal. 241. In this last case the court says: “Roads leading from the main road which runs through the country to the residences or farms of individuals are of public concern, and under the control of the government. Taking private property for the purposes of such roads -is not a taking for private use. They are open to every one who may have occasion to use them, and are therefore public.”

These questions are all that are raised in the case, and, as we find no error in them, the judgment of the district court must be affirmed.

(All the justices concurring.)  