
    Ezra E. Howard et al. v. Ezra Brown et al.
    Filed October 17, 1893.
    No. 4688.
    1. Public Highways: Establishment: Construction of Statute. The provision of section 7, chapter 78, Compiled Statutes, that roads must not be established through any burying ground, or any garden, orchard, or ornamental ground, etc., without the consent of the owner, applies only to roads established under the general provisions of the road law.
    
      2. -Establishment on Section Lines: Power oe County Boards. The establishment of section-line loads is governed by the special provisions of section 46 of the road law, by which all section lines are declared to be public roads, and may be opened as such whenever, in the judgment of the county boards, the public interest demands.
    , Error from the district court of Clay county. Tried below before Morris, J.
    /S'. W. Christy, for. plaintiffs in error,
    cited: Smart v. Hart, 44 N. W. Rep. [Wls.J, 514; Clark v. Phelps, 4 Cow. • [N. Y.], 202; People v. Judges of Dutchess County, 23 Wend. [N. Y.], 360; Harrington v. People, 6 Barb. [N. Y.], 612; Tompkins v. Hyatt, 28 N. Y., 355.
    T-Fto. M. Clark and M. S. Edgington, contra.
    
   Post, J.

This was a- proceeding in equity in the district court of Clay county, by the plaintiffs in error, to enjoin the defendants in error, the county clerk and members of the board of supervisors, from opening a road along the section line between sections 26 and 35 in township 5, range 6, adjoining the city of Edgar, in said county. The ground upon which the relief is sought is that the plaintiffs are the owners in fee-simple of the west half of the northeast' quarter of séction 35, and the southwest quarter of the southeast quarter of section 26; that they have a valuable orchard of apple-trees on the line between the two sections," which would be destroyed by the opening of the threatened road along said line; also that it would necessitate the digging of a new well and the removal of their tanks, windmill, feed yards, and sheds, to their great damage and inconvenience.' A demurrer to the petition was sustained by the district court and the action dismissed, whereupon the cause was brought into this court by petition in error.-

The only question which calls for notice is whether the petition states a cause of action. The reliance of plaintiffs in error is upon the provisions of section 7, 'chapter 78, Compiled Statutes, entitled “Roads,” as follows: “The commissioner is not confined to the precise matter of the petition, but may inquire and determine whether that or any road in the vicinity, answering the same purpose and in substance the same, be required; but such road must not be established through any burying ground which is exempt from execution, nor through any garden, orchard, or ornamental ground contiguous to any dwelling house, so as to cause the removal of any building without the consent of the owner.”

From a careful reading of the chapter above referred to, it is evident that sections 4 to 35 thereof, inclusive of both sections, have reference to the ordinary proceeding for the establishment of roads in which a petition and notice are essential in order to give the county board jurisdiction to act, and are not applicable to section-line roads, which are governed by the special provision contained in section 46, as will be observed hereafter. Sections 6, 7, 8, and 9 have especial reference to the appointment, powers, and duties of the commissioners to examine the route proposed by the petition, and determine the expediency of the road as well as the'location thereof. The provision of section 7, that “such road must not be established through any orchard * * * so as to cause the removal of any building,” etc,, was designed as a limitation upon the discretion of the county board in cases of roads established by petition.

Provision is made for public roads on all section lines by section 46 as follows: The section lines are hereby declared to be public roads in each county in this state, and. the county board of such county may, whenever the public good requires it, open such roads without any preliminary survey, and cause them to be worked in the same manner as other public roads; Provided, That any damages claimed by reason of the opening of any such road shall be appraised and allowed as nearly as practicable in manner hereinbefore provided; And provided further, That the county board before opening such section-line road shall direct the county surveyor to perpetuate the existing government corners along such line by planting monuments of some durable material with suitable witnesses, whenever practicable, and make a record of the same.” The effect of this provision is to make section lines public highways, to be opened for use whenever, in the opinion of the county board, the public good requires. Here there is no limitation upon the discretion of the board, and no such exception • with respect to gardens, orchards, or buildings as is found in section 7.

The special provision of the section last quoted must prevail rather than the general provisions of the road law. Such is the well settled rule in this state. (See Albertson v. State, 9 Neb., 430.) One who, since the adoption of the present road law, erects buildings or plants trees on a section line does so at his peril, and with the knowledge that the county, which is but the agent of the state in the exercise of the sovereign power of eminent domain, may, whenever the interest of the public demands, compel their removal. It appears from the petition that the county board, in the exercise of their discretion, .have, in due form, adjudged that the necessities and convenience of the public will be best served by the opening of a highway along this particular section line. That tribunal is by law clothed with exclusive jurisdiction of the subject, and its judgments and orders are final and conclusive, at least when assailed in a collateral proceeding. The judgment of the district court is right and must be

Affirmed.

The other judges concur.  