Highway – Establish

In establishing a road on a section line, neither a petition nor a record that the board found that the public good required the road is necessary. Banner County v. Young, 184 Neb. 546, 169 N.W. 2d 280 (1969); Howard v. Brown, 37 Neb. 902, 56 N.W. 713 (1893); Barry v. Deloughrey, 47 Neb. 354, 66 N.W. 410 (1896). But even in such a case there must be notice and proceedings with respect to damages. ‘The county board may, without petition or notice, make a preliminary order establishing a section line road, or declaring that it shall be opened; but before it can be actually opened there must be proceedings upon proper notice to ascertain damages.’ Banner County v. Young, 184 Neb. 546, 169 N.W. 2d 280 (1969) (quoting Barry v. Deloughrey, 47 Neb. 354, 66 N.W. 410 (1896)).

In Warren v. Brown, 31 Neb. 8, 47 N.W. 633 (1890), the court held the filing of a written consent was necessary to confer jurisdiction upon the county board to establish a consent road. Banner County v. Young, 184 Neb. 546, 169 N.W.2d 280 (1969). This is a condition precedent to the establishment of such road. Without it, the proceedings are a nullity. Banner County v. Young, 184 Neb. 546, 169 N.W.2d 280 (1969); Deloughery v. Lapsley, 110 Neb. 105, 193 N.W. 109 (1923).

To determine the question whether or not a highway has been established the court is required to examine the proceedings had to determine if the jurisdictional requirements necessary for that purpose have been met. If they have not been met, the right does not exist and lapse of time will not supply the defect. Banner County v. Young, 184 Neb. 546, 169 N.W.2d 280 (1969). See Kunz v. Bornemeier, 170 Neb. 463, 102 N.W.2d 842 (1960).

Mere entry in the minutes of a meeting of the board of county commissioners that a consent road was established was not sufficient itself to establish a road where there was no proof of any nature that action to effectuate that entry was ever taken. Banner County v. Young, 184 Neb. 546, 169 N.W.2d 280 (1969); R.R.S. 1943, Sec. 23-1305.

SEE ALSO DEDICATION – ACCEPTANCE OF