A petition, regular in form and signed by a sufficient number of qualified signers, was presented to the board of county commissioners of Cloud county for the laying out and opening of a certain road to run north on a section line, beginning at a described corner. Viewers were duly appointed, and they met at a time of which notice had been duly given, called to their aid the county surveyor and proceeded to view and lay out a road beginning at the point designated and running thence east thirteen rods, thence north two miles parallel to the section line, thence west thirteen rods to the section line, thence north on the designated section line to the point designated in the petition as the terminus. A proper report of the proceedings and of the survey were duly filed. The notes of the survey specifically show the course of the road as above *108described, but the plat of the road filed does not show a road from the point of beginning to the point thirteen rods east, where the road was turned at a right angle to the north. This was probably for the reason that a public road already extended along that line. The viewers allowed $250 damages to appellant, who owned land taken for the road. The board of county commissioners approved the report and allowance of damages in the sum of $250, and from such allowance plaintiff appealed to the district court.
When the action for damages came on for hearing in the district court the' appellant moved to dismiss the entire proceeding, on the ground that the county commissioners had no jurisdiction in the premises. The court denied the motion on the ground that the appeal from the award of damages waived the question of jurisdiction. From that decision the appellant brought the case to this court for review, and this court affirmed the decision of the district court. (Wilson v. Cloud County, 87 Kan. 798, 126 Pac. 642.)
Thé appellant thereafter brought this action to enjoin the board of county commissioners, .township, trustees, and others interested, from opening the road. A temporary restraining order was issued and, on a hearing, was. set aside, and a motion for temporary injunction was heard and overruled, and the case is brought here to reverse this order.
The motion for temporary injunction was submitted by agreement on the evidence produced on the hearing to set aside the restraining order, and is based upon the theory that the road petitioned for was not in fact laid out or surveyed. It is true the road for two miles was not laid out immediately on the line designated in the petition. It was started at the point designated and ran from thence thirteen rods east, thence two miles north, thence thirteen rods west, thence north on the designated line to the designated termination.
Section 7278 of the General Statutes of 1909 pre*109scribes the duties of the viewers and surveyor in such case, viz., to lay out the road as prayed for in the petition, “ór as nearly so as a good road can be made at & reasonable expense, taking into consideration the utility, convenience and inconvenience, and expense which will result to individuals as well as to the public, if such road . . . shall be - established and opened.”
The viewers did not report their reasons for deviating from the line designated in the petition, but the plat filed by the surveyor shows that near the point of beginning the road would cross a creek, and at some distance farther on would be in the bed of the creek, and some distance farther again would cross and recross the creek and then strike an elevation of land. This, it is said, would have necessitated the building of bridges and considerable grading. .Whether, however, the viewers and surveyor had good reason for the deviation of the course of the road is immaterial to this decision.
It is an old adage that “one can not eat his cake and sell it.” The principle upon which the case of Wilson v. Cloud County, supra, and cases therein cited, were decided is applicable to this case. In claiming damages for the laying out of the road before the commissioners, and in appealing from the decision to the district court thereon, appellant, in effect, affirmed that his land had been taken and damaged by the laying out of the road, which was about to be opened, an.d he can not now be heard to say that the road was not in fact laid out.
The judgment is affirmed.