CHAPTER 78.-ROADS.*

SEC. 1. [Supervision by county board.]-The county board has a general supervision over the public roads of the county, with power to establish and maintain them as herein provided, and to see that the laws in relation to them are carried into effect. [1879, 120.]

SEC. 1 a. [In counties where city of first class is situated.]—The county board of any county in which any city of the first class is situated is hereby authorized and empowered, whenever the condition of the road fund of said county will warrant it, to grade, pave, and otherwise improve roads or any portion thereof, leading into and adjacent to said city, and pay for such improvement as herein directed. Provided, however, That the improvements contemplated in this act shall be restricted to the territory within a limit of one mile from the boundary of said city. [1883, chap. XXIII.]

SEO. 1 b. [Same-Estimate of cost.]-Whenever the county board shall contemplate the making of such improvement, they shall notify the county surveyor, whose duty it shall be to make an examination of the proposed improvement and report an estimate of the cost thereof to said board. If upon the coming in of such report the county board determine to make the improvement, they shall cause personal notice to be served on the owners of property abutting on said road of their intention to make such improvement, and if any owner is a non-resident, then by personal service on the agent of such non-resident, if he have one residing in the county, and in case he has no such agent, by publishing such notice in a newspaper published and of general circulation in said county, and upon proof of service or publication of such notice aforesaid, and after giving such owners an opportunity to be heard, the board shall decide upon the material to be used in making such improvement, and enter an order upon their record for the construction thereof. [Id. §2.]

SEC. 1 c. (Expense how paid.]-Two-thirds of the cost of any improvement authorized by this act shall be paid by said board out of the road fund of said county, and one-third by special assessment on all real estate abutting on said improvement to the depth of five hundred feet on each side thereof, and at the time of making the order for such improvement the county board shall levy said special assessment on such property in proportion to the feet front abutting on said road, and the amount so assessed shall be placed upon the tax list for the ensuing year and collected in the same manner and at the same time as other property, and when collected credited to the road fund of said county. [Id. § 3.]

SEC. 1 d. [Contracts.]-All contracts for the construction of such improvement shall be let to the lowest responsible bidder who will enter into bonds for the faithful performance thereof in such amount and with such sureties as the county board may determine, and payments on said contract shall be made by warrants drawn on the road fund of said county. [Id. § 4.]

SEC. 2. [Width.]-All public roads shall have a width of sixty-six feet, and the staked line marking such road shall be on the northern edge of the said sixtysix feet, if the road is running east and west, and on the western edge, if the course of the road is north and south; Provided, that roads located on the state line, where any adjoining state locates similar roads, may have a width of thirty-three feet; And provided further, That whenever the county board shall deem it necessary, the width of such road, at any point where a bridge is to be located and constructed, may be one hundred and fifty feet for a distance not exceeding three hundred feet on either side, from the center of such bridge.

SEC. 8. [Public roads defined.]-All roads within this state, which have *NOTE.-"An act to amend chapter forty-seven of the Revised Statutes entitled "Roads." Laws 1879, 120 Took effect June 1, 1879.

NOTE, also, that "An act to provide for the election of road supervisors and further define their duties." Laws 1867, 45, G. S. 958; "An act declaring section lines roads in certain counties," G. S. 959;" "An act prescribing additional duties of supervisors." Laws 1875, 113; "An act to vacate certain roads," Laws 1875, 114, being superseded and re-enacted by different provisions of this chapter, are omitted.

SECS. 1a-d. An act to authorize the county board of any county in which a city of the first class is situated, to grade, pave and otherwise improve roads leading thereto. Took effect June 1, 1883.

SECS. 3-4. 16 Neb. 245, 571.

been laid out in pursuance of any law of this state, or of the territory of Nebraska, and which have not been vacated in pursuance of law, are hereby declared to be public roads; Provided, That all roads that have not been used within five years shall be deemed vacated.

SEC. 4. [Establishment Petition.]-Any person desiring the establishment, vacation, or alteration of a public road, shall file in the clerk's office of the the proper county, a petition signed by at least ten electors residing within five miles of the road proposed to be established or vacated, in substance as follows: To the board of-county. The undersigned ask that a public road, commencing atand running thenceand terminating at

-be established, vacated, or altered (as the case may be). SEC. 5. [Deposit for expenses.]-The petitioners for establishment or alteration of any public road shall at the time of filing their petition therefor, deposit with the county clerk a sufficient sum of money to pay for the laying out or alteration of such road, the expense thereof to be paid out of such deposit, unless the road is finally established or altered. If the road is finally established or altered, the money shall be returned to the persons who deposited the same.

SEC. 6. [Commissioner-Appointment.]-Upon compliance with the foregoing requisites, the county clerk shall appoint some suitable and disinterested elector of the county a commissioner to examine into the expediency of the proposed road, alteration, or vacation thereof, and report accordingly.

SEC. 7. [Same-Power.]-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.

SEC. 8. [Same.]—In forming his judgment, he must take into consideration both the public and private convenience, and also the expense of the proposed road. SEC. 9. [Same-Report.]-After a general examination, if he shall not be in favor of establishing the proposed road, he will so report, and no further proceedings shall be had on that petition.

SEC. 10. [Same.]-If he deems such establishment expedient, he may proceed at once to lay out the road as hereinafter directed, and may report accordingly, if the circumstances of the case are such as to enable him to do so, without pursuing the course pointed out in the next section.

SEC. 11. [Survey.]--If the precise location of the road cannot be otherwise given, he must cause the line of the road to be accurately surveyed and plainly marked out.

SEC. 12. [Commissioner's oath.]-Any commissioner, other than the county surveyor, must be sworn to faithfully and impartially discharge his duty as such commissioner, and, after being thus qualified, he shall have power to swear the assistants employed to a faithful and impartial performance of their respective duties in laying out the road described in his commission.

SEC. 13. [Bearing stakes.]—Stakes must be set at each change of direction, on which shall be marked the bearing of the new course. Stakes must also be set at the crossing of fences and streams, and at intervals in the prairie, not exceeding a quarter of a mile each; in the timber, the course must be indicated by trees suitably blazed.

SEC. 14. [Trees-Monuments.]--Bearing trees must, when convenient, be established at each angle, and the position of the road relative to the corners of sections, and junctions of streams, or any other natural or artificial monument, or conspicuous object, must, as far as convenient, be stated in the field notes, and shown on the plat.

SEC. 15. (Plat and report-Files.]-A correct plat of the road, together with a copy of the field notes of the surveyor, if one has been employed, must

be filed as a part of the commissioner's report, and he shall also state the probable cost of the work in laying out or altering such road, including any necessary bridges, culverts and ditches. Such report shall be filed with the county clerk.

SEC. 16. [Objections and claims for damages to be filed.]—If the report of the commissioner be in favor of establishing or altering the road, the county clerk must appoint a day, not less than sixty, nor more than ninety days, on or before which day all objections to the establishment or alteration to the road, and claims for damages by reason thereof, must be filed with the clerk.

SEC. 17. [Examination--Report.]--The time for the commisioner to commence the examination shall be fixed by the clerk, and if he fails to so commence, or report, the clerk may fix another day, or extend the time for making such report, or may appoint another commissioner.

SEC. 18. [Notice to land owners.]-Notice shall be published for four weeks in some newspaper published in the county, if any such there be, or if there be no newspaper published in the county then such notice shall be posted in at least three public places along the line of said proposed road, which notice may be in the following form:

in

To all whom it may concern: The commissioner appointed to locate, vacate, or alter (as the case may be) a road commencing at county, running thence (describe in general terms all the points as in the commissioner's report), and terminating at has reported in favor of the establishment (vacation or alteration) thereof, and all objections thereto, or claims for damages, must be filed in the county clerk's office on or before noon of the day ofroad will be established (vacated or altered) without reference thereto.

A. D.

or such

A. B., County Clerk.

The publication or posting of such notice shall be a sufficient notice to all persons owning land over which any road is proposed to be located.

SEC. 19. [Report by county clerk.]-No objections or claims for damages shall be filed or made after noon of the day fixed for filing the same, and if no objections or claims for damages are filed on or before noon of the day fixed for filing the same, and the county clerk is satisfied the provisions of the preceding section have been complied with, he shall report to the county board at their next session all the proceedings hereinbefore provided for.

SEC. 20. [Hearing of application.]—If objections to the establishment of the road or claims for damages are filed, the further hearing of the application shall stand continued to the next session of the county board, held after the commissioners appointed to assess damages have reported.

SEC. 21. [Appraisers of damages.]-When claims for damages are filed and on the day appointed for filing the same, the county clerk must appoint three suitable and disinterested electors of the county as appraisers, to view the ground, on a day fixed by him, and report upon the amount of damages sustained by the claimants; such report shall be made and filed in the clerk's office within thirty days after the day they are appointed.

SEC. 22. [Claims, etc., to be in writing.]-All claims for damages and objections to the establishment, vacation, or alteration of the road must be in writing, and the statements in the application for damages shall be considered denied in all the subsequent proceedings.

SEC. 23. [Notice to appraisers.]-The clerk shall cause notice of their appointment to be given to each of the appraisers, fixing the hour at which they are to meet at the office of the clerk, or of some justice of the peace therein named. SEC. 24. [Appraisers Vacancies.]—If the appraisers are not all present within one hour of the time fixed, the clerk or justice, as the case may be, shall fill the vacancy by the appointment of others. The appraisers must be sworn to discharge their duty faithfully and impartially. Should the report not be filed in time, or should any other good cause for delay exist, the clerk may postpone the

SEC. 18. Under the former law requiring notice in advance of petition. [G. 8. 958.] it was held that unless the notice had been given, the commissioners had no jurisdiction in the location of the road. 5 Neb. 254. 6 Neb. 133. 7 Neb. 31. 9 Neb. 331. Proof of posting notices should be made. 6 Neb. 133.

time for final action on the subject, and may, if expedient, appoint other commissioners.

SEC. 25. [Costs.]-Should no damages be awarded the applicant therefor, the whole of the costs growing out of his application shall be paid by him.

SEC. 26. [Action of county board.]-At the next meeting of the county board, after the proceedings herein before contemplated have been had, the said board may hear testimony, consider petitions for and remonstrances against the establishment, vacation, or alteration, as the case may be, if such remonstrance be filed within the time provided in section 19, and may establish, vacate, or alter, or refuse to do so, as in their judgment, founded on the testimony, the public good may require. Said board may increase or diminish the damages allowed by the appraisers, and may make such establishment, vacation, or alteration, conditioned upon the payment in whole or in part of the damages awarded, or expenses in relation thereto.

SEC. 27. [Same.]-In the latter case, a day shall be fixed for the performance of the condition, which must be before the next session of the board, and if the same is not performed by the day thus fixed, the board shall, at such session, make some final and unconditional order in the premises.

SEC. 28. [Action to be recorded.]-Any order made or action taken in the establishment of a road, shall be entered in the road record, distinguishing between those made or taken by the clerk and those by the county board.

SEC. 29. [Record of plat and field notes.]-After the road has been finally established, the plat and field notes must be recorded by the county clerk, and the road overseers of the district through which such road passes shall be directed by the clerk to have the same opened and worked; but when crops have been planted or sowed before the road is finally established, the opening thereof shall be delayed until the crop is harvested.

SEC. 30. [Vacation of old road.]-The establishment of a new road on the route of a road already established according to law, shall not vacate the road previously established, unless such vacation is prayed for in the petition, and so declared in the order establishing a new road.

SEC. 31. [Removal of fence.]--Whenever a public road is ordered to be established or altered, according to the provisions of this chapter, which road shall pass through or on inclosed land not planted or sowed with crops, the road overseer shall give the owner or occupant of such land sixty days notice in writing to remove his fences. If such owner or occupant does not remove his fence within sixty days after such notice, the overseer shall cause the same to be removed, and the road opened and worked; and such owner shall forfeit the sum of one dollar for every day he shall permit his fence to remain after the expiration of said sixty days, and shall pay all necessary cost of removal, to be collected by said overseer before any justice of the peace having jurisdiction, for the use and benefit of the school fund.

SEC. 32. [Streets in villages.]-All public streets of villages not incorporated are a part of the public road; and all road overseers or persons having eharge of the same, in the respective districts of such villages, shall work the same as provided by law.

SEC. 33. [Cities or incorporated village.]—Such portions of all roads as lie within the limits of any city or incorporated village, shall conform to the direction and grade, and be subject to all regulations of other streets in such city or village.

SEC. 34. [Lands of state institutions.-Roads or streets shall not be established or opened across the lands reserved by the state for its various institutions lying adjacent thereto without the express consent of the legislature.

IN TWO OR MORE COUNTIES.

SEC. 35. [Roads along or across county line.]-The establishment, vacation, or alteration of a public road, either along or across a county line may SEC. 26. The measure of damages is the fair market value of the land actually taken, while special benefits may be set off against incidental damages to the residue of the tract. 3 Neb. 242.

be effected by the concurrent action of the respective county boards in the mode hereinbefore prescribed. The commissioners appointed to locate the road in such cases must act in concert, and the road will not be deemed established, vacated, or altered in either county until it is so in both. All expenses incurred under the provisions of the preceding section, and all expenses in keeping public roads on county lines in repair, shall be paid equally by the counties interested.

SEC. 36. [Distinctions abolished-Concurrent action required.]— Hereafter there shall be no distinction between roads heretofore known as state roads and county roads; both are alike subject to the provision of this chapter. Roads established by the concurrent action of the county boards of two or more counties can only be discontinued by the concurrent action of the county boards of the several counties in which the same may be situated, but such roads shall be treated in all other respects as provided in this chapter.

CONSENT ROADS.

SEC. 37. [How established.]-Public roads may be established without the appointment of a commissioner, provided the written consent of all the owners of the land to be used for that purpose be first filed in the county clerk's office; and if it is shown to the satisfaction of the county board that the proposed road is of sufficient public importance to be opened and worked by the public, they shall make an order establishing the same, from which time only shall it be regarded as a public road.

SEC. 38. [Same-Survey necessary.]-If a survey for the establishment of the road named in the preceding section is necessary, the board before ordering such survey, may require the parties asking for the establishment of such highway to pay, or secure the payment, of the expenses of such survey.

[DAMAGES-APPEALS.]

SEC. 89. [Damages-Appeals.]-Any applicant for damages claimed to be caused by the establishment of a road, may appeal from the final decision of the county board, to the district court of the county in which the land lies; but notice of such appeal must be served on the county clerk within twenty days after the decision is made. If the road has been established, on condition that the petitioners therefor pay the damages, such notice shall be served on the four persons first named in the petition for the highway, if there are that many who reside in the county. [14 Neb. 811. 16 Id. 572.]

SEC. 40. [Same.]-An appeal may also be taken by the petitioner for the road as to the amount of damages, if the establishment of the road has been made conditional upon his paying the damages, by his serving notice of such appeal on the county clerk and applicant for damages within twenty days after the decision of the board, and filing a bond in the office of such clerk, with sureties to be approved by him, conditioned for the payment of all costs occasioned by such appeal, unless the appellant fails to recover a more favorable judgment in the district court than was allowed him by such board.

SEC. 41. [Transcript on appeal.]-In the cases contemplated in the two preceding sections, the clerk shall, within ten days after the notices aforesaid are served and filed in his office, make out and file in the office of the clerk of said court a transcript of the papers on file in his office, and the proceedings of the board in relation to such damages. The claimant for damages shall be plaintiff, and the petitioner for the road defendant, except the damages have been ordered paid out of the county treasury, in which case the county shall be defendant.

SEC. 42. [Proceedings on appeal.]-The amount of damages the claimant is entitled to shall be ascertained by said court in the same manner as in actions by ordinary proceedings, and the amount so ascertained shall be entered of record, but no judgment shall be rendered therefor. The amount thus ascertained shall be certified by the clerk of the county board, who shall thereafter proceed as if such amount had been by them allowed the claimant as damages.