Viewers; notice of view; duties of county surveyor

68-104. Viewers; notice of view; duties of county surveyor. (a) Upon presentation of any petition for a road, or for the alteration or vacation of any road, to the county commissioners, at any regular session of their board, it shall be the duty of such commissioners, if they find the petition to be a legal one, and that the proper bond has been filed, to appoint three disinterested householders of the county as viewers with such commissioners, who may act as viewers of such road, and the county clerk shall give notice by advertisement set up in the county clerk's office and in every municipal township through which any part of such road is designed to be laid out, altered, or vacated, for at least 20 days, and by publication for two consecutive weeks in a newspaper of general circulation in the county, setting forth that such petition has been presented, giving the substance thereof, and that the commissioners or the viewers, on the day designated, which shall not be more than 20 days after the date of the second publication in the newspaper of the notice herein required, will proceed to view the* such road, and give all parties a hearing. (b) They shall also cause a record of such notice to be entered on their journal by the county clerk. They shall issue an order directing the county surveyor to meet with them at the time and place named in such notice to survey such road. In case of failure to meet on the day designated, they may meet on the following day, without further notice; and in case of failure to meet within the time herein specified, new notice shall be given as hereinbefore provided; that in all applications for the location, change and relocation of any road to be located upon or along any section line, and the petition shall so state, and shall specify the section lines to be followed, the place of beginning and the place of ending, the survey may be dispensed with, and in case the owners of the lands taken agree in writing to the proposed location, relocation, or change, and the commissioners are satisfied that the location, relocation or change prayed for is practicable, and can be made without unreasonable expense, they may dispense with the viewing of such location, relocation or change of road, and shall order the same to be surveyed, platted and opened, and shall also direct the county surveyor to note such location, relocation or change of roads upon the road records of such county surveyor's office. History: L. 1911, ch. 248, § 4; May 22; L. 2011, ch. 49, § 25; July 1. * The word "the" should have been stricken. Source or Prior Law: L. 1864, ch. 112, § 3; G.S. 1868, ch. 89, § 3; L. 1872, ch. 175, § 1; L. 1874, ch. 108, § 3; L. 1903, ch. 411, § 1. Attorney General's Opinions: County road unit system; effect on townships. 85-132. Board of county commissioners has discretion to determine whether county road is to be opened. 2002-30. When assistance of surveyor or survey required in connection with vacation of county road. 2006-15. CASE ANNOTATIONS 1. Judicial nature of proceedings; not invalidated by mere immaterial irregularities. Willis v. Sproule, 13 Kan. 257. 2. Petition necessary to confer jurisdiction proceedings void unless jurisdiction obtained. Comm'rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129; Oliphant v. Comm'rs of Atchison Co., 18 Kan. 386. 3. Notice waived and claim presented; landowner cannot afterwards question proceedings. Ogden v. Stokes, 25 Kan. 517. 4. Legislature may establish roads, etc., and cast expense upon county. The State, ex rel., v. Comm'rs of Shawnee Co., 28 Kan. 431. 5. Notice is jurisdictional; commissioners cannot vacate road unless notice given. Troy v. Comm'rs of Doniphan Co., 32 Kan. 507, 4 P. 1009. 6. Order laying out or vacating road void unless notice given. Crawford v. Comm'rs of Elk Co., 32 Kan. 555, 4 P. 1011. 7. Opening or vacating roads; records of board as evidence. Crawford v. Comm'rs of Elk Co., 32 Kan. 555, 4 P. 1011. 8. Jurisdiction exhausted when viewers appointed until other jurisdictional facts appear. The State v. Horn, 34 Kan. 556, 9 P. 208. 9. Report of viewers; courts construe proceedings strictly relative to jurisdiction. The State v. Horn, 34 Kan. 556, 9 P. 208. 10. Failure to give notice; landowner participating in proceedings cannot object. Akin v. Comm'rs of Riley Co., 36 Kan. 170, 13 P. 2. 11. Mortgagor in possession of land regarded as owner; notices, etc. Goodrich v. Comm'rs of Atchison Co., 47 Kan. 355, 27 P. 1006. 12. Proceedings not void because road designated as private road. Howard v. Schmidt, 70 Kan. 640, 79 P. 142. 13. Order of commissioners operates as acceptance of congressional grant. Molyneux v. Grimes, 78 Kan. 830, 98 P. 278. 14. Record of notice of meeting of viewers; copy notice sufficient. Molyneux v. Grimes, 78 Kan. 830, 98 P. 278. 15. Proof of publication of notice unnecessary; presumption of regularity. Molyneux v. Grimes, 78 Kan. 830, 98 P. 278. 16. Meeting of commissioners to elect chairman deemed "regular meeting." Molyneux v. Grimes, 78 Kan. 830, 98 P. 278. 17. Road held regularly laid out although record of proceedings defective. Guthrie v. Atchison County, 94 Kan. 584, 588, 146 P. 1157. 18. Award under K.S.A. 68-114; appeal dismissed; duty of board to pay. Larkin v. Nemaha County Comm'rs, 170 Kan. 164, 170, 223 P.2d 987. 19. Cited; review of certain statutes applicable to township roads. Clay Township v. 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