calling for service of notice does not necessarily relieve one exercising the power from the giving of notice, many cases holding that, independent of statutory provisions, the fundamental provision obtains that private property cannot be taken without due process of law, and this includes, as one of its essentials, the giving of notice.374 § 772. Objections. A petition for the appropriation of property under eminent domain proceedings should state in substance the petitioner's right to exercise the power, the necessity for its exercise, and give the names of the property owners whose interests may be affected by the proceedings. It is upon this petition when presented to the proper tribunal that commissioners are appointed to determine the amount of compensation to which those whose interests are taken are entitled. At this time the property owner can exercise the right of making certain objections to the pending proceedings in respect to the appropriation of his property.375 The question of compensation is one to be determined later by the commissioners and cannot be raised at this time. The necessity for the exercise of the power or the lack of it is a judicial question and can be determined by the tribunal passing upon the petition of its own motion or otherwise.376 The rule almost universally obtains that where the right to exercise the power is given by the legislature to an individual or corporation, the necessity for the exercise of Sharpshooter's Ass'n v. Hamtranck Highway Com'rs, 34 Mich. 37; James v. City of St. Paul, 58 Minn. 459, 60 N. W. 21; Forster v. Winona County Com'rs, 84 Minn. 308, 87 N. W. 921; Graham v. Flynn, 21 Neb. 229, 31 N. W. 742. The service of notice is not necessary upon one of the petitioners for a proposed highway. Knox v. Town of Epsom, 56 N. H. 14; In re Reserve Tp. Road, 80 Pa. 165; Towns v. Klamath County, 33 Or. 225, 53 Pac. 604. 374 Curran v. Shattuck, 24 Cal. 427. 375 Burnett V. City of Sacre mento, 12 Cal. 76; Thompson v. Emmons, 24 N. J. Law (4 Zab.) 45. One whose land has not been taken cannot object to the proceedings because of an irregularity affecting another party to the proceeding. 376 Town of Greensburg v. International Trust Co. (C. C. A.) 94 Fed. 755; Fields v. Colby, 102 Mich. 449; Forster V. Winona County Com'rs, 84 Minn. 308, 87 N. W. 921; King v. Blackwell, 96 N. C. 322; Paine v. Town of Leicester, 22 Vt. 44; Gallup v. Town of Woodstock, 29 Vt. 347; Lewis v. Washington, 5 Grat. (Va.) 265. that right rests in the judgment and the discretion of the grantee of the power and that it is only in cases where there is a clear abuse or an unreasonable use of the power that the tribunal passing upon the petition will also determine the question of the necessity for an exercise of the power on that particular occasion.377 It is for the one possessing the privilege to determine when its necessities are so great as to compel the use of the privilege. In the laying out of highways the law frequently imposes, however, upon some official body, a determination of the necessity and feasibility for its opening.378 This is especially true where the proceedings are set in motion by the filing of a petition of property owners for the establishment of the highway.379 The character of the use is also a legislative question and the grant of the right is ordinarily conclusive that the appropriation of property by a particular grantee and in a particular instance is a public one such as will justify the exercise of the power of eminent domain.380 The legislative determination of the character of the use is not final or conclusive, however, but is to be determined ultimately by the judicial department of government whose duty it is to determine the constitutionality of all legislation. Waiver or loss of right to object. The principle has been stated several times relative to a strict construction and a literal 377 San Mateo County v. Coburn, 130 Cal. 631, 63 Pac. 78. The location, necessity, and extent of a public highway are matters of a political or legislative character and the power to determine such questions have been vested in county boards of supervisors, their decision is not subject to collateral attack and cannot be reviewed in a subsequent proceeding brought for the condemnation of necessary lands. Inhabitants of Windsor v. Field, 1 Conn. 279; Crow v. Judy, 139 Ind. 562, 38 N. E. 415; Morse v. City of Westport (Mo.) 33 S. W. 182; Pope v. Town of Union, 18 N. J. Eq. (3 C. E. Green) 282. But see Campau v. City of Detroit, 14 Mich. 276. See, also, cases cited in the following note. 378 Wells v. Rhodes, 114 Ind. 467, 16 N. E. 830; Larson v. Fitzgerald, 87 Iowa, 402; Spalding v. Town of Groton, 68 N. H. 77, 44 Atl. 88. The judgment of such officials of the public use and necessity is conclusive and cannot be collaterally attacked. In re Four Corner Road, 59 Hun, 618, 13 N. Y. Supp. 458; In re Road in Ohio & Ross Tps., 166 Pa. 132, 31 Atl. 74; Kopecky v. Daniels, 9 Tex. Civ. App. 305, 29 S. W. 533. See, also, authorities cited in the following section. 379 Shaffer v. Weech, 34 Kan. 595. Such a petition is jurisdictional. 380 Fanning v. Gilliland, 37 Or. 369, 61 Pac. 636. Rehearing denied, 62 Pac. 209. following of all statutory provisions relative to the exercise of the power. Upon the presentation of a petition, objections to all preceding action should be taken.281 The form of the petition, with its necessary allegations,382 its mechanical execution,383 the form and manner of service of the notice,384 may be inquired into, and the usual rule obtains that an appearance by the property owner at this time and the failure to raise objections will be regarded as a waiver on his part of a right to afterwards urge 381 Williams v. Town of Stonington, 49 Conn. 229; Smith v. Alexander, 24 Ind. 454; Abbott v. Johnson County Com'rs, 5 Kan. App. 162; Inhabitants of Raymond v. Cumberland County Com'rs, 63 Me. 110; Inhabitants of Freetown v. Bristol County Com'rs, 26 Mass. (9 Pick.) 51; Inhabitants of Rutland v. Worcester County Com'rs, 37 Mass. (20 Pick.) 71; Hamblin v. Barnstable County Com'rs, 82 Mass. (16 Gray) 256; Thorndike v. Norfolk County Com'rs, 117 Mass. 566; Inhabitants of Watertown v. Middlesex County Com'rs, 176 Mass. 22, 56 N. E. 971; Davis v. Boone County Com'rs, 28 Neb. 837, 45 N. W. 249; Carpenter's Petition, 67 N. H. 574, 32 Atl. 773; State v. Inhabitants of Trenton, 53 N. J. Law, 178, 20 Atl. 738; Wharton v. Sorden, 59 N. J. Law, 356; Wilson v. City of Scranton, 141 Pa. 621, 21 Atl. 779; In re Frederick Street, 155 Pa. 623, 26 Atl. 773; Doddridge County Sup'rs v. Stout, 9 W. Va. 703. 382 Crossley v. O'Brien, 24 Ind. 325; Sowle v. Cosner, 56 Ind. 276; Smith v. Goldsborough, 80 Md. 49, 30 Atl. 574; White v. Landaff, 35 N. H. 128; Hardy v. Town of Keene, 54 N. H. 449; In re Widening of Washington St., 60 Hun, 580, 14 N. Y. Supp. 470. 383 Miller v. Burks, 146 Ind. 219, 43 N. E. 930; Turley v. Oldham, 68 Ind. 114. 384 Walker v. City of Aurora, 140 Ill. 402, 29 N. E. 741; Orton v. Tilden, 110 Ind. 131, 10 N. E. 936; Gifford v. Baker, 158 Ind. 339, 62 N. E. 690; Akin v. Riley County Com'rs, 30 Kan. 170, 13 Pac. 2; Stephens v. Leavenworth County Com'rs, 36 Kan. 664; Hedeen v. State, 47 Kan. 402, 28 Pac. 203. The presentation of a claim for damages will operate as a waiver of the failure to give notice. Hanson v. Cloud County, 8 Kan. App. 857, 55 Pac. 468; Condon v. County Com'rs, 89 Me. 409, 36 Atl. 626; Gill v. Inhabitants of Scituate, 100 Mass. 200; Inhabitants of Hyde Park v. Wiggin, 157 Mass. 94, 18 L. R. A. 188; Kieckenapp v. Town of Wheeling Sup'rs, 64 Minn. 547; Anderson v. Town of Decoria, 74 Minn. 339; Hurst v. Town of Martinsburg. 80 Minn. 40, 82 N. W. 1099; Town of Gilford's Petition, 25 N. H. (5 Fost.) 124; Peavey v. Town of Wolfborough, 37 N. H. 286; Roberts v. Stark, 47 N. H. 223; Issenhuth v. Baum, 11 S. D. 223, 76 N. W. 928; McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027. A special appearance is not a waiver of the giving of notice. Robinson v. Winch, 66 Vt. 110, 28 Atl. 884; Brock v. Town of Barnet, 57 Vt. 172; Tench v. Abshire, 90 Va. 768, 19 S. E. 779; State v. Langer, 29 Wis. 68. them.385 This statement does not apply, however, to jurisdictional question; the usual rule obtains that they can be raised at any time.380 § 773. Appointment of viewers. Ordinarily, the determination of the existence of the necessity for the exercise of the power is left to the one to whom the right is granted. Statutes, however, frequently provide for the laying out 387 of highways through proceedings originating upon the pe 885 Taylor v. Marcy, 25 Ill. 518; Crouse v. Whitlock, 46 Ill. App. 260; Osborn v. Sutton, 108 Ind. 443, 9 N. E. 141; Robinson v. Rippey, 111 Ind. 112, 12 N. E. 141; Little v. Thompson, 24 Ind. 146; Smyth V. State, 158 Ind. 332, 62 N. E. 449; Washington Ice Co. V. Lay, 103 Ind. 48; Bronnenburg v. O'Bryant, 139 Ind. 17; Stronsky v. Hickman, 116 Iowa, 651, 88 N. W. 825, 57 L. R. A. 243; Ford v. Cullins, 22 Ky. L. R. 251, 56 S. W. 993; Inhabitants of Hyde Park v. Wiggin, 157 Mass. 94, 31 N. E. 693, 17 L. R. A. 188; McKusick v. City of Stillwater, 44 Minn. 372, 46 N. W. 769. Objections must be taken in the manner and at the time prescribed by law or they will be deemed waived. Kieckenapp v. Wheeling Sup'rs, 64 Minn. 547, 67 N. W. 662; In re Essex Av. 121 Mo. 98, 25 S. W. 891; Bacheler v. Town of New Hampton, 60 N. H. 207; Rettinger v. City of Passaic, 45 N. J. Law, 146; In re One Hundred and Eighty First St., 63 Hun, 629, 17 N. Y. Supp. 917; In re Lexington Ave., 64 Hun, 632, 18 N. Y. Supp. 828; In re Woolsey, 95 N. Y. 135; Tingley v. City of Providence, 9 R. I. 388; Skinner v. State, (Tex. Civ. App. 65 S. W. 1073. But see Pagel v. Fergus County Sup'rs, 17 Mont. 586, 44 Pac. 86; Damp v. Town of Dane, 29 Wis. 419. 386 Thatcher v. Crisman Co., 6 Colo. App. 49; Hankins v. Calloway, 88 Ill. 155. A proceeding to establish a highway cannot be collaterally attacked for errors not going to the jurisdiction. Ely v. Morgan County Com'rs, 112 Ind. 361, 14 N. E. 236. Proceedings not showing want of jurisdiction on their face cannot be collaterally impeached State v. Rye, 35 N. H. 368. Where proceedings show jurisdiction they cannot be collaterally attacked. People v. Allen, 163 N. Y. 559, 57 N. .E. 1122; Grady v. Dundon, 30 Or. 333, 47 Pac. 915. Where the original highway proceedings were without jurisdiction, a curative act by the legislature is without effect. In re Abington Road, 14 Serg. & R. (Pa.) 31; Howell v. City of Tacoma, 3 Wash. St. 711; Griggs v. City of Tacoma, 3 Wash. St. 785, 29 Pac. 449; Damp v. Town of Dane, 29 Wis. 419. 387 Brown v. McCord, 20 Ind. 270; Ralston v. Beall (Ind.) 30 N. E. 1095; Thrall v. Gosnell, 28 Ind. App. 174, 62 N. E. 462; McClure v. Franklin County Com'rs, 124 Ind. 154, 7 L. R. A. 684; Patterson v. Baumer, 43 Iowa, 477; Stewart v. Wyandotte County Com'rs, 45 Kan. tition of a prescribed number of property owners interested, praying for its establishment.388 The court or body having jurisdiction of the petition thereupon appoints commissioners or viewers upon whom is imposed the duty of determining the necessity 708, 26 Pac. 683; Howell v. Redlon, 44 Kan. 558, 24 Pac. 1109, 10 L. R. A. 537; Butts v. Geary County Com'rs, 7 Kan. App. 302, 53 Pac. 771; Schroeder v. Village of Onekama, 95 Mich. 25, 54 N. W. 642. The record should contain and show the petition for the highway, the notice and its service. A recital regarding these facts in the return of the commissioners is not sufficient. State v. Macdonald, 26 Minn. 445; Banse v. Town of Clark, 69 Minn. 53, 71 N. W. 819. Oral evidence is competent to show that the petition for the establishment of a highway was signed by the necessary number of qualified petitioners. Fisher v. Davis, 27 Mo. App. 321. The residence of petitioners is a jurisdictional fact and should be shown by the county record. Warren v. Gibson, 40 Mo. App. 469; Whitely v. Platte County, 73 Mo. 30; Craft v. De Soto County Sup'rs, 79 Miss. 618, 31 So. 204; State v. Morgan, 79 Miss. 659, 31 So. 338; Pope v. Town of Union, 32 N. J. Law, 343; People v. Village of Port Jervis, 100 N. Y. 283; Campbell v. Park, 32 Ohio St. 544. It is not necessary that all the signatures should be attached to one petition if all the signatures combined make the required number, it is sufficient. Makemson v. Kauffmann, 35 Ohio St. 444; Bewley v. Graves, 17 Or. 274, 20 Pac. 322; Bockoven v. Lincoln Tp. Sup'rs, 13 S. D. 317, 83 N. W. 335, 50 L. R. A. 351. 388 Hill v. Ventura County Sup'rs, 95 Cal. 239; Bradford v. Cole, 8 Fla. 2C3; Canyon County v. Toole (Idaho) 69 Pac. 320; Warne v. Baker, 35 Ill. 382; Behrens v. Melrose Highway Com'rs, 169 Ill. 558, 48 N. E. 578; Afton Highway Com'rs v. Ellwood, 193 Ill. 304, 61 N. E. 1033; Monroe County Com'rs v. Harrell, 147 Ind. 500, 46 N. E. 124. A single petition, under acts 1895, p. 145, § 2, may ask for the establishment of several disconnected roads. Bronnenburg v. O'Bryant, 139 Ind. 17; Keyes v. Tait, 19 Iowa, 123. A failure to recite in a petition for the establisament of highways that the petitioners are householders, is not a fatal defect. McCollister v. Shuey, 24 Iowa, 362; Curtis v. Pocahontas County, 72 Iowa, 151, 33 N. W. 616. A petition asking that a highway "be open for travel" is insufficient. Larson v. Fitzgerald, 87 Iowa, 402; Lehman v. Rinehart, 90 Iowa, 346; Rawlings v. Biggs, 8 Ky. L. R. 919, 3 S. W. 147; Nischen v. Hawes, 15 Ky. L. R. 40, 21 S. W. 1049; Cole v. County Com'rs, 78 Me. 532, 7 Atl. 397; Bryant v. County Com'rs, 79 Me. 128, 8 Atl. 460; Smith v. Goldsborough, 80 Md. 49; Inhabitants of Dartmouth v. Bristol County Com'rs, 153 Mass. 12; People v. Judge of Recorder's Ct., 40 Mich. 64; Wilson v. Burr Oak Tp. Board, 87 Mich. 240, 49 N. W. 572. A petition is insufficient which does not purport to be signed by free holders. Burkelo v. Washington County Com'rs, 38 Minn. 441, 38 N. W. 108. A petition for a county road may be presented at an adjourned or extra session of the |