(dissenting).
I cannot agree with my associates in the proposition that a landowner over whose premises an attempt is being made to lay out a highway cannot object to irregularities in the proceedings, if he appears before the supervisors, and, as to that point in this case, dissent. The exercise of the power of eminent domain — the taking of a man’s property without his consent — is against common right, and all acts which relate to or confer the right are to be strictly construed. This rule has often been laid down in this court. And in these days, when there is a growing belief that public as well as private corporations are inclined to ride roughshod over the guarantied rights of the people, there should be no departure from this doctrine. It seems to me that reversing the court below in this case has opened the door for very loose practice in proceedings initiated for the purpose of appropriating private property to public use.
1. It is true that this court, in common with many others, has held that a landowner who voluntarily appears before the supervisors and takes part in the proceedings waives service of a notice of such proceedings. If the landowner is not notified of the time and place of the hearing of the petition, the failure goes to the jurisdiction unless he appears. Notice is jurisdictional, and must be given in strict conformity to the statute. Town of Lyle v. Chicago, *47M. & St. P. Ry. Co., 55 Minn. 223, 56 N. W. 820. Notice may be waived, and in this case was waived, by Hurst, this respondent. Had it not been, it is obvious, from the only affidavit of service and posting of notice filed in these proceedings, and relied upon by the supervisors, that the latter were without jurisdiction to proceed against him. This affidavit was as follows:
“State of Minnesota, ) County of Renville, > ss Town of Martinsburg. )
Albert Buboltz, being duly sworn, says: That on the 14th day of February, A. D. 1899, he served the within notice upon each of the occupants of the land through which the within-described highway may pass, by leaving a copy at the place of residence, E. R. Butter-field, C. A. Butterfield, John Hurst, J. Maxwell, J. Coleman, unknown; by mailing notice to Gaylord and Wm. Manecke; by reading notice personally, C. Hillman on February 13th, Albert Buboltz, Frank Fritz, Otto Fritz, and Helmuth Kicker. That, also, on the 14,16,17 day of February, A. D. 1899, he posted copies of the within notice in six public places in said towns: One notice at the southwest corner of S. W. \ of section six (6); one on post near town hall of Martinsburg; and one at southwest corner of section eleven (11), Wellington; one notice S. W. corner of section nine (9); one notice at S. E. corner of section twenty-two (22); one at a tree on the S. -J-of section 32. Albert Buboltz.”
It seems plain to the writer that there was a total absence of proof that notice had been served on occupants of land through which the road was to be laid out, and also a total failure to prove that the notices had bpen posted as required by lav/. To say that this affidavit proved anything against the owners of the land is to hold that any sort of an instrument which happens to be verified is sufficient to confer jurisdiction on the supervisors in proceedings in invitum. I do not think that, as against those who failed to appear at the hearing, it can be claimed that jurisdiction was acquired; and, if so, the proceeding is absolutely void as to them. But the opinion of the majority seems to be to the contrary; for it is said that, the proof having “satisfied the supervisors,” the jurisdiction to proceed was complete. Evidently these supervisors were easily satisfied, but I do not think that mere satisfaction on their part is enough. If so, why require any proof at all that the statute *48has been complied with? Each supervisor may not only be “satisfied” on this point, but he may in fact know of his own personal knowledge that notices have been duly served and posted. But, instead of resting with what may be supreme satisfaction on this point in the minds of the supervisors, the statute requires that proof of service and of posting “shall be shown by affidavit,” and in this case there was no proof worthy of being so designated. Nor do I understand that Burkleo v. County of Washington, 38 Minn. 441, 38 N. W. 108, is authority in support of the claim made for it in the majority opinion. Finally, on this matter of jurisdiction to act, let me say that, in the order laying out the road in question, the supervisors do not seem to have been “satisfied” as to posting in each of the towns; for the recital is that the same were posted “in six of the most public places of said town,” not in three places in each town.
If I fully appreciate the views as expressed, they are that, by appearing and taking part in the proceedings, Hurst waived his right to object, on appeal to the district court, to all irregularities which went to the question of jurisdiction. Waiver is an intentional relinquishment of a known right, and no man is bound by a waiver of his rights unless it is made distinctly, and with full knowledge of the rights which he intends to waive. In this case Hurst may have waived proper notice to himself, but nothing further. I agree with what has been said in an adjoining state, whose road laws are quite like our own, as follows:
“A landowner through whose land the highway runs may, by express agreement, waive his right to compensation for the land taken for the highway, and he may, undoubtedly, by express stipulation, waive his right to personal notice of the time and place of the meeting of the board to decide upon the petition, because these things are matters which are personal to him, and do not affect the interest of the public generally. But that a landowner cannot waive any step prescribed by the statute, in which the public generally is interested, is, we think, conclusively settled by the cases of Roehrborn v. Schmidt, 16 Wis. 546, 549, and Damp v. Town, 29 Wis. 419. In the first case it was held that the landowner, who appeared before the supervisors at the time fixed for the hearing of the petition, and objected to the laying out of the highway, did not waive the right to question the jurisdiction of the board to proceed for the reason that the public notice required by the statute had *49not been posted as required by law.” Ruhland v. Supervisors, 55 Wis. 664, 13 N. W. 877.
2. I think the statute gave to Hurst the right to question the validity of these proceedings; the law in force being Laws 1897, c. 199, § 14. A like statute was so construed in Pairier v. Board of Co. Commrs., 68 Minn. 297, 7 N. W. 382, as will be seen by the quotation therefrom found in the main opinion. That decision is exactly in point, in my judgment.
3. Sound public policy, it appears to me, demands this construction of the statute as to appeals. If the law is as construed by the majority, a highway may be laid out as to one landowner, and not as to another. It may be established over one man’s farm, and not over his neighbor’s. One may want the road, that he may travel, to some important point, and for this purpose it may be of great, benefit to him, — a benefit taken in consideration when his damages' are assessed. After his damages are assessed, he discovers that,, through the failure of the supervisors, he is unable to reap the expected benefit. A part of the way is laid out, and a part is not. He may be located in a cul de sac. Worse than this, he may not be able to go beyond that part laid over his own premises. And his neighbor, who may question the validity of the proceedings, is not cut off from so doing until the statute of limitations runs against him. These suggestions not only affect the rights of individuals, but public interests are also affected. Town and county treasuries may easily be plundered, if the rule here laid down is carried to its logical conclusion. Large sums of money may be appropriated for payment of damages, and the towns or counties paying the same obtain nothing but pieces of rights of way, a map of which would much more resemble part of a checker-board than a public road.
4. By the 1897 law, hereinbefore referred to, every taxpayer and legal voter of the county in which is the road is given the right of appeal to the courts. The decision of the majority in this case practically wipes out that right; for, in effect, it holds that no appellant can question the validity of the proceedings, except as to some matter personal to himself. The logic of the opinion is that this is the rule whether the appellant has or has not appeared, for *50by appearance he waives nothing except a known right. It necessarily follows that Hurst waived nothing but the right to have the statutory notice of the time and place of hearing.
5. Lastly, I do not wish to be understood as assenting to that part of the opinion in which it is said that a town-line road may be properly laid out by proceedings in one of the towns; the records to be kept therein, and “duplicates filed in the adjoining town.” I find no statute which can be stretched to cover such a course of pro-i cedure. It is, I think, the proper way to duplicate the petition, and proceed in each town precisely as if a road two rods wide was to be laid out in each, up to the time that the town supervisors are to act jointly. Their action on the petition and subsequently, in every detail, should appear in the records of each town by duplicate original orders, including the final order establishing the way and assessing the damages. This is certainly more in harmony with the statute.