Access to public highway, when; petition; width of road and plat; payment of expenses

68-117. Access to public highway, when; petition; width of road and plat; payment of expenses. Whenever the premises of any person shall be so completely surrounded by adjoining lands, the property of others or by such lands and water, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie for a road, and one road only, through some portion of the adjoining lands. The petition shall set forth the use and purposes of such proposed road. Upon presentation of such petition, the commissioners shall proceed in accordance with the provisions of K.S.A. 68-101 to 68-110, both sections inclusive, and K.S.A. 68-115 and 68-116, to lay out such road, make returns of plats, and allow damages, if any should be held or allowed: Provided, Said road shall not be less than forty (40) feet nor more than one hundred (100) feet in width and shall be laid out upon the quarter or quarter-quarter section lines when practicable. The said road when so ordered by the board of county commissioners shall be platted and recorded in the office of the register of deeds and shall become a public way, subject to restrictions contained in the petition: And provided further, That the owner or owners, their grantees, successors or assigns, of the land specifically benefited by the establishment of such public road, shall forthwith pay all expenses of establishing said road, including all damages, if any should be held or allowed and thereafter forever maintain and keep the same in repair and without any expense or liability to the township or other municipality in which such road is so laid out and established. History: L. 1911, ch. 248, § 13; L. 1913, ch. 261, § 1; L. 1915, ch. 291, § 1; R.S. 1923, 68-117; L. 1961, ch. 299, § 6; L. 1967, ch. 352, § 1; July 1. Source or Prior Law: L. 1874, ch. 108, § 29. Law Review and Bar Journal References: Case in annotations Nos. 12 and 13 below mentioned in 1956-57 survey of constitutional and administrative law, Paul E. Wilson, 6 K.L.R. 140, 147 (1957). Survey of Kansas law on real and personal property (1965-1969), 18 K.L.R. 427, 437, 438 (1970). Attorney General's Opinions: Classification and designation of roads in noncounty unit road system counties. 91-140. Road opened pursuant to section forever remains the responsibility of owner of the land specifically benefited by the establishment of such road. 2018-6. CASE ANNOTATIONS 1. Petition signed only by interested petitioner gives board jurisdiction. Butts v. Geary County, 7 Kan. App. 302, 53 P. 771. 2. Must appear that road is practicable and of public utility. Butts v. Geary County, 7 Kan. App. 302, 53 P. 771. 3. Effect of promise of petitioner to save county harmless. Butts v. Geary County, 7 Kan. App. 302, 53 P. 771. 4. Proceedings not rendered void by use of words "private road." Howard v. Schmidt, 70 Kan. 640, 642, 79 P. 142; Johnson County v. Minnear, 72 Kan. 326, 83 P. 828. 5. Roads may be legally established under this section; proceedings. Johnson County v. Minnear, 72 Kan. 326, 83 P. 828. 6. Railway company entitled to compensation for easement for private crossing. Chamberlain v. Railway Co., 107 Kan. 341, 344, 191 P. 261. 7. Denial of compensation to railway company would violate constitution. Chamberlain v. Railway Co., 107 Kan. 341, 344, 191 P. 261. 8. Removal of bridge; taking of private property; compensation. Sample v. Jefferson County, 108 Kan. 498, 500, 196 P. 440. 9. No money compensation for loss of bridge; injunction proper. Sample v. Jefferson County, 108 Kan. 498, 500, 196 P. 440. 10. Deprivation of property not avoided by providing other means of access. Sample v. Jefferson County, 108 Kan. 498, 500, 196 P. 440. 11. Construed; road not surrounded by "property of other persons"; statute inapplicable. McCluggage v. Loomis, 176 Kan. 318, 320, 322, 270 P.2d 248. 12. Order denying relief appealable under K.S.A. 19-223. In re Petition of McAdam, 181 Kan. 73, 75, 309 P.2d 648. 13. Section applies only to premises completely surrounded. In re Petition of McAdam, 181 Kan. 73, 75, 76, 309 P.2d 648. 14. Remedy available hereunder is not exclusive or mandatory; statute does not preclude assertion of implied easement. Horner v. Heersche, 202 Kan. 250, 252, 254, 255, 256, 257, 447 P.2d 811. 15. Reversed and remanded; whether the water contemplated by this section is sufficient to preclude the landowner from reasonable access is a question for the trier of fact. Hall v. Twin Caney Watershed Joint Dist. No. 34, 4 Kan. App. 2d 202, 204, 604, P.2d 63. 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