the proceedings should be embodied in one statute, but the general rules of procedure, statutory and otherwise, may be looked to in aid of a statute providing for the establishment of highways.13 Special road laws are to be construed in connection with the general road laws of the state,14 and when silent on any subject the general law prevails.15 Since the jurisdiction conferred is special and limited, every requisite of the statute must be com plied with.16 According to some decisions, the mode of proceeding prescribed must be strictly pursued,1 at least as to jurisdictional requirements,18 and this must appear on the face of the proceedings.19 Other cases hold that a substantial compliance is sufficient,20 where nothing is omitted which is fundamental or jurisdictional.21 17 [§ 50] (2) Amendment and Repeal. Questions as to the amendment 22 or repeal 23 of highway statutes are governed by the rules relating to statutes generally. Repeals by implication are not favored.25 Such statutes are to be construed together and so construed as to give, if possible, effect to each.26 Where each covers a separate and inde- Mandamus to highway officers see | Pa. Super. 372; In re Greene, etc., 24. See Statutes [36 Cyc 1053, 25. Robinson v. Rippey, 111 Ind. 112, 12 NE 141; State v. Romero, 19 N. M. 1, 140 P 1069; Cook v. Vickers, 141 N. C. 101. 53 SE 740. [a] In Louisiana Rev. St. § 3369, providing in part that roads shall be thereafter laid out by a jury of freeholders, is not in conflict with Civ. Code art 2640, and the articles immediately preceding it, providing for the taking of private property for public use under the law of eminent domain, Fuselier v. Iberia Parish 20. Ida.-Canyon County v. Toole, Police Jury, 109 La. 551, 33 S8 Ida. 501, 69 P 320. 597. Ind.-Helms v. Bell, 155 Ind. 502, [b] In Washington. "The per-58 NE 707; Hudson v. Voreis, 134 [a] Statute held not repealed by manent highway act gives authority Ind. 642. 34 NE 503; Strong v. Make- implication.-State v. Romero, 19 N. only for the improvement of public ever, 102 Ind. 578, 1 NE 502, 4 NE M. 1. 140 P 1069; St. Francois roads already existing, and proceed-11; Eads v. Kumley, 67 Ind. A. 361, County v. Marks, 14 Mo. 539; Cook ings for acquiring a right of way 119 NE 219. v. Vickers, 141 N. C. 101, 53 SE for and the opening and establishing 740. of new roads must be taken under chapter 54, Laws of 1911." Gregory v. Kitsap County, 110 Wash. 476, 485, 188 P 761. Ky. Ott v. Graves, 9 Ky. Op. 86. 121. Minn. State V. Morrison, 132 Mo.-Nickerson v. Lynch, 135 Mo. 471, 37 SW 128; McBeth v. Trabue, 69 Mo. 642. Pa. In re Spear's Road, 4 Binn. 174. Cross references: Ascertainment and entry of record Minn. 454, 157 NW 706. of highway by user see supra § 25. Condemnation proceedings in general see Eminent Domain §§ 301-303. Exclusiveness of statutory mode of establishment see supra § 2. See also Eminent Domain § 312. 13. Robinson v. Rippey, 111 Ind. 112, 12 NE 141; Dickson v. Perkins, 172 N. C. 359, 90 SE 289; Lawrence County v. Deadwood, etc., Toll-Road Co., 11 S. D. 74, 75 NW 817. 14. Stayton v. Hulings, 7 Ind. 144; Peo. v. Richmond County, 20 N. Y. 252; Dickson v. Perkins, 172 N. C. 359, 90 SE 289; Wilburn v. Raines, 111 Va. 334, 68 SE 993. 15. Wilburn V. Raines, 111 Va. 334, 68 SE 993. 16. Helms v. Bell, 155 Ind. 502, 58 NE 707; Doctor v. Hartman, 74 Ind. 221; Eads y. Kumley. 67 Ind. A. 361, 119 NE 219; In re Conant, 102 Me. 477. 67 A 564, 120 AmSR 512; Cumberland Valley R. Co. v. Martin, 100 Md. 165, 59 A 714. 17. Cal.-Curran v. Shattuck, 24 Cal. 427. Conn.-Crawford v. Bridgeport, 92 Conn. 431, 103 A 125. Ill. Hyslop v. Finch, 99 Ill. 171; Geneseo Highway Comrs. v. Harper, 38 Ill. 103. Me.-In re Conant, 102 Me. 477, 67 A 564. Minn.-Cassidy v. Smith, 13 Minn. 129. S. C.-York County v. Fewell, 21 S. D.-Kothe v. Berlin Bd., 19 S. 21. McDonald V. Pope County Road Dist. No. 3, 292 I. 386. 127 NE 29; Town v. Blackberry, 29 Ill. 137; Shull v. Brown, 25 Nebr. 234, 41 NW 186; Howard V. Dakota County. 25 Nebr. 229, 41 NW 185; Sanford v. Webster County, 5 Nebr. (Unoff.) 364, 98 NW 822; State v. Richmond, 26 N. H. 232. 22. See cases infra this note. 26. Fuselier v. Iberia Parish Police Jury, 109 La. 551, 33 S 597. 27. Gregory v. Kitsap County, 110 Wash. 476, 188 P 761. 28. Robinson v. Rippey, 111 Ind. 112, 12 NE 141. 29. Robinson v. Rippey, 111 Ind. 112. 12 NE 141. 30. Findling v. Foster, 170 Ind. 325, 84 NE 529; Robinson v. Rippey, 111 Ind. 112, 12 NE 141. 31. Robinson v. Rippey, 111 Ind. 112, 12 NE 141. 32. Baubie V. Ossman, 142 Mo. 499. 44 SW 338. 33. Ill-Menard County V. Kincaid, 71 I. 587. Me.-Webster V. County Comrs., 63 Me. 27; William V. Lincoln County, 35 Me. 345 (semble). Md. Wade v. St. Mary's Industrial School, 43 Md. 178. Pa. In re Hickory Tree Road, 43 Pa. 139; In re Uwchlan Tp. Road, 30 Pa. 156; In re North Canal St. Road, 10 Watts 351. 36 AmD 185; In re Hatfield Tp. Road, 4 Yeates 392. Va.-Terry V. McClung, 104 Va. 599, 52 SE 355. But see Burrows v. Vandevier, 3 Oh. 383, 384 ("Although the new law contained no provision for the continuance and completion, of applications, pending when it took effect, we are satisfied that it so operated upon them as to preserve them in the condition in which it found them"). 34. Sayres v. Gregory, 7 Ind. 633; Webster v. County Comrs., 63 Me. 27; Rice v. Douglas County, 93 Or. 551, 183 P 768; Schuylkill County's App., 38 Pa. 459. 23. See cases infra this note. [a] Repeal of particular statutes see Hutchinson v. Lowndes County, 131 Ga. 637, 62 SE 1048; Barham v. Weems, 129 Ga. 704, 59 SE 803; Howell v. Chattooga County, 118 Ga. 635, 45 SE 241; McGinnis v. Ragsdale, 116 Ga. 245, 42 SE 492; Casey v. Kilgore, 14 Kan. 478; Hurst V. Martinsburg, 80 Minn. 40, 82 NW 1099; Nickerson v. Lynch, 135 Mo. 1471, 37 SW 128: Carter v. Wade, 59 [a] A petition for a highway is N. J. L. 119, 35 A 649; James V. not an action within a statute proSammis, 132 N. Y. 239, 30 NE 502 viding that "actions pending at the [aff 10 NYS 143]; Cook v. Vickers, time of the passage or repeal of an 141 N. C. 101, 53 SE 740; Giesy v. act, shall not be affected thereby." Marion County, 91 Or. 450, 178 P 598; Webster v. County Comrs., 63 Me. In re Coal Tp. Contract, 200 Pa. 352, 27. 49 A 797; In re Bucks County Road, 35. Rice V. Douglas County, 93 3 Whart. (Pa.) 105; In re Kuss, 60|Or. 551, 183 P 768. Miss. Stockett V. Nicholson. Miss. 75; Delahuff v. Reed, 1 Miss. 74. N. J.-Whittingham v. Hopkins, 70 N. J. L. 322, 57 A 402. Pa. In re Opening of Knox St., 12 Wis. Austin v. Allen, 6 Wis. 134. with judicial proceedings then pending.36 If the mode of procedure is changed by statute pendente lite, the proceedings are not abated,37 but should as a rule follow the new procedure.38 According to some decisions there is a choice of procedure in such cases.39 the county or town acts as the political agent of the state.43 For its own convenience it is authorized to confer this power upon certain officers, whose duties are expressly or by implication prescribed by statute. The question of what officer or body of officers is invested with the delegated power to establish highways depends of course upon the statutes of the particular state.15 Sometimes the power is delegated to officers whose office is especially created for the purpose; 46 but more commonly it is delegated as an additional power to officers having other functions in the administration of the local government,47 or to some court,48 in which [51] b. Jurisdiction and Powers of Public Authorities Generally 40-(1) In General. The power and duty of establishing highways is in the municipality, town, or county, upon which it is conferred by law 1 as distinguished from the particular road district or highway officers through which, for convenience, such power may be exercised,42 and in exercising such power and performing such duty 36. Wentworth v. Farmington, 48 269, 153 P 562. filed, the further hearing of the apN. H. 207; Boston, etc., R. Co. v. [e] Highway surveyors.-(1) The plication shall stand continued to the Cilley. 44 N. H. 578; Colony v. Dub-word "highway," as used in St. next session of the board of superlin, 32 N. H. 432; Rice v. Douglas (1896) c 417, providing a board of visors, the auditor has no authority County, 93 Or. 551, 183 P 768. survey for the town of Revere to layto establish the highway where 37. Mayne v. Huntington County, out and establish highways, covers claim for damages is filed before the 123 Ind. 132, 24 NE 80; Burrows v. all ways which the public interest time specified, although the claim Vandevier, 3 Oh. 383; In re Uwchlan requires to be laid out, relocated, al-is also paid before that time. RessTp. Road, 30 Pa. 156. tered, or widened by the town au- ler v. Hirshire, 52 Iowa 568, 3 NW 38. Steele V. Empson, 142 Ind.thorities. including an avenue in the 613. (2) Acts 12th Gen. Assem. c 160 397, 41 NE 822; Mayne v. Hunting- town. Janvrin v. Poole, 181 Mass. § 2, making the auditor clerk of the ton County, 123 Ind. 132, 24 NE 80;463, 63 NE 1066. (2) Surveyors of board of supervisors, his acts "subWeaver v. Ferguson, 68 Ind. A. 169, the highways have power to lay out ject however, in all cases, to final 117 NE 659; Burrows v. Vandevier, a road in a newly created township review and approval by the Board," 3 Oh. 383; In re Hickory Tree Road, before the town officers can by its does not abridge the authority of the 43 Pa. 139; In re Uwchlan Tp. Road, terms be elected. Minhinnah v. board to establish highways, the "re30 Pa. 156: In re Hatfield Tp. Road, Haines, 29 N. J. L. 388. view" embracing the facts, as well 4 Yeates (Pa.) 392; In re Towamenas the law, of each case. Brooks v. cin Road, 23 Pa. Co. 113, 15 Montg. Payne, 38 Iowa 263. Co. 194; Tuttle v. Knox County, 89 Tenn. 157, 14 SW 486. 39. Rice V. Douglas County, 93 Or. 551, 561, 183 P 768. "If necessary, it could follow the previous law; but if the procedure under the new law were deemed more convenient at the particular stage to which the proceeding had gone, there is no reason in the world why it should not be employed." Rice v. Douglas County, supra. 40. Waiver of objections and consent to jurisdiction see infra § 157. 41. Denver v. Myers, 63 Nebr. 107, 88 NW 191. 42. Denver v. Myers, 63 Nebr. 107, 88 NW 191. 43. State v. Fuller, 105 Me. 571, 75 A 315. 44. State v. Fuller, 105 Me. 571, 75 A 315. 45. 46. a [g] As between county commissioners and public land agent.-The authority to locate roads through public lands selected for settlement being vested by Rev. St. c 18 § 32, in the county commissioners, the requirement of c 5 § 29, that the land "cause such roads to be located as the public interests," etc., "shall require," confers on him no authority to locate them. Burns v. Annas, 60 Me. 288. 47. See cases infra this note. [h] As between selectmen and fire district commissioners.-The act of July 21, 1887, did not transfer from town selectmen to fire district commissioners the power to lay out highways. Henry v. Haverhill, 67 N. H. 172, 37 A 1039. [i] As between board of township commissioners and courts.—(1) Jurisdiction of court of quarter sessions to lay out road between two townships of first class is not taken away by the act of June 7, 1901 (P. L. p 510), giving power to township commissioners to act within township. In re Scott, etc., Tps. Road. 17 Pa. Dist. 791. (2) Such court's jurisdiction to lay out road between two townships of first class is not taken away by the act of April 7, 1899 (P. L. p 104) creating townships of first_class. In re Scott, etc., Tps. Road, 17 Pa. Dist. 791. See statutory provisions. [b] Township committee or superSee statutory provisions. visors-Carter v. Wade, 59 N. J. L. [a] State highway commission 119. 35 A 649; Lewly v. West Hoboken, has power, under some statutes, to 54 N. J. L. 508, 24 A 477; Williams v. lay out and create new roads as part Turner Tp., 15 S. D. 182, 87 NW 968. of state highways whenever neces- [c] Town selectmen. (1) Orsary to secure good alignment or rington v. Penobscot County, 51 Me. best possible grade. Rockhill v. Ben-570; Butchers' Slaughtering, etc., Asson, 97 Or. 176, 191 P 497. SOC. v. Boston, 139 Mass. 290, 30 [b] Highway commissioners or NE 94. (2) "It is undoubtedly true supervisors. -(1) State v. Canter- that without a vote of the town exbury, 28 N. H. 195. (2) Without an pressly empowering them so to do, order of the quarter sessions, super-selectmen who are not road comvisors of the highways have no au- missioners are not authorized by law [j] Change of statute pendente thority either to open a temporary 'to take the duty of building a town lite. (1) Where a statute provided way for the public in a case of sud-road out of the hands of the regu- for courts of common pleas, and den necessity through private prop-lar road officers,' and cannot bind gave them all the jurisdiction vesterty or to correct errors in the open- the town by contracts made by themed in the former court of common ing of an old one. Holden v. Cole, 1 for the construction of such a way." pleas and of all actions pending in Pa. 303. (3) The act of 1728. au- State v. Fuller, 105 Me. 571, 575, 75 the several counties. it transferred thorizing highway commissioners "to A 315 [foll Goddard v. Harpswell, to such new courts all petitions for make, alter, and keep in repair" the 88 Me. 228, 33 A 980]. highways from county to county roads, means only such roads as are [d] County commissioners' court. pending in the late court. In re or shall be laid out by legislative Rankin v. Noel, (Tex. Civ. A.) 185 Wheeler, 7 N. H. 280. (2) Prior to authority, and does not give the SW 883; Dunlap v. Hardin, (Tex. Civ. Acts (1886) No. 20, the selectmen or commissioners discretionary power A.) 223 SW 711 (discretion cannot be the county court had no authority to create highways, as the legisla- exercised beyond powers granted). to establish highways at grade ture showed, by other and special [e] Police jury.-In Louisiana across a railroad; but while this legislation for the creation of high-the police jury has power to open case was pending on appeal, having ways, that there was no intention highways. Fuselier v. Iberia Parish been remanded from the supreme to vest such power in the commis- Police Jury. 109 La. 551, 33 S 597; court to the county court, such act sioners. Withers V. Claremont Jefferson Police Jury v. De Heme- was passed authorizing the laying of County Road Comrs., 5 S. C. L. 83. court, 7 Rob. (La.) 509. highways at grade. It was held that [c] Road district supervisors.- [f] As between county supervi-as the act gave no original jurisdicThe legislature has the right to vest sors and auditor.-(1) Under Code tion, and as the jurisdiction of the in supervisors of road districts the (1873) § 937. providing that the audi- county court was merely appellate, power to lay out public roads in the tor shall proceed to establish a high-it had in this case no power to esseveral districts throughout the way if no objections or claims for tablish such highway, but that prostate. Bolinger V. Bassier Parish damages are filed before a certain ceedings must be commenced de Police Jury, 141 La. 596, 75 S 423. time, and § 939, providing that if ob-novo. Connecticut, etc., R. Co. v. St. jections to the establishment of the Johnsbury, 59 Vt. 320, 10 A 573. highway or claims for damages are 48. See statutory provisions. [d] Board of good road commissioners.-Feltham v. County, 28 Ida. case it has been held that the court may act in vacation.49 A proceeding which is void for want of jurisdiction does not exhaust a special power under which the commissioners may act but once.50 But if a statute allows only a certain period of time for laying out a particular road, the expiration of that time pendente lite takes away all power to act further.51 [§ 52] (2) As between County Officers and Officers of Township, Town, or Municipality within County. As between officers of a county and officers of a township, town, or incorporated municipality within the county, subject to some qualifications, limitations, and exceptions, the latter officers have the power to lay out ways which are wholly within their respective territorial jurisdictions, while the power of the county officers is confined to the establishment of ways extending beyond the limits of a township or town or without the limits of a municipality.52 ship officers.53 In some states, however, the county officers have jurisdiction in such cases.54 Conversely the legislature may confer upon township officers power over county ways.55 If the road extends beyond the township, the power is usually vested in the county officers,56 and the township officers cannot act in the matter.57 As between officers of county and town. In New England town officers have the power to lay out a road, wholly within the limits of a town.58 In such case, county officers have no jurisdiction,59 unless the way so laid forms part of a county way. It the way extends into two or more towns the county officers have jurisdiction to lay it out, and the selectmen cannot do so.62 61 60 As between officers of county and municipal corporation. As a rule county officers have no power to establish highways wholly 63 or partly 64 within the limits of an incorporated city, town, or village, without the consent of the local authorities.65 In some states, however, certain courts have jurisdiction to lay out highways located partly in a township and partly in a city or borough.66 [a] County courts.-Bennett v. those matters, and the legislature | 67; Platt v. Milton, 55 Vt. 490. Hall, 184 Mo. 407, 83 SW 439; Sea- may confer power in regard to them [a] Where a petition prays for field v. Bohne, 169 Mo. 537, 69 SW on township highway commissioners, a highway extending into two towns 1051; Zeibold v. Foster, 118 Mo. 349, Peo. v. Mankin Highway Comrs., 15 in the same county, the county court 24 SW 155; Foster v. Dunklin, 44 Mo. Mich. 347. has original jurisdiction, and this is 216; Morton v. Hood River County, not taken away by the road's being 88 Or. 144, 171 P 584; Hydes Ferry laid out in one town only. Kelley v. Turnpike Co. v. Davidson County, 91 Danby, 46 Vt. 504; Kent v. WallingTenn. 291, 18 SW 626; Harner v. ford, 42 Vt. 651. Monongalia County Ct., 80 W. Va. 626, 92 SE 781. [b] Circuit court.-In Iowa the circuit court has no power to lay out highways. Kennedy v. Dubuque, etc., R. Co., 34 Iowa 421. [c] Fiscal courts (1) In Kentucky the fiscal court has power to open road in first instance, and exercise of this power is not dependent on road being first laid out by order of county court. Campbell v. Hammons, 177 Ky. 219, 197 SW 646. (2) Under the former road act, the county court alone had authority to open a road in the first instance. Campbell v. Hammons, 177 Ky. 219. 197 SW 646; Rowe v. Alexander, 156 Ky. 507, 161 SW 508; Potter v. Matney, 165 Ky. 266, 176 SW 987; Spencer County Ct. of Cl. v. Com., 7 KyL 306. [d] Police magistrates may lay out roads in Illinois. Goshen Highway Comrs. v. Jackson, 165 Ill. 17, 45 NE 1000 [aff 61 Ill. A. 381]. 49. State v. Macdonald, 26 Minn. 445, 4 NW 1107. 50. Cole v. Cumberland County, 78 Me. 532, 7 A 397; State v. Hanson, 168 Wis. 497, 170 NW 725. 56. Daggy v. Green, 12 Ind. 303; Renard v. Grande, 29 Ind. A. 579, 64 NE 644; In re Verona Borough, etc., 9 Pa. Cas. 114. 12 A 456; In re Ransom, etc., Tps. Road, 18 Pa. Co. 62. Monterey v. Berkshire County, 417, 2 Lack LegN 279; In re Ches-7 Cush. (Mass.) 394; In re Griffin, 27 ter, etc., Road, 2 Chest. Co. (Pa.) N. H. 343. 438, 3 Del. Co. 174; In re Plymouth Borough, etc., Road, 5 Kulp (Pa.) 115. [a] The fact that a road laid out by selectmen extends to a town line does not defeat the jurisdiction, within the statute giving to county commissioners power to establish highways leading from town to town. Hebron v. Oxford County, 63 Me. 314. [b] A way laid out from one part to another of a county road may yet be a town way for the convenience of the inhabitants, and properly laid out by the selectmen. Craigie v. Mellen, 6 Mass. 6. 63. Philbrick v. University Place, 106 Iowa 352, 76 NW 742; Barker v. Wyandotte County, 45 Kan. 681, 698, 26 P 585, 591; Salsbury v. Gaskin, 66 N. J. L. 111, 48 A 531; In re Verona Borough, etc., Road, 9 Pa. Cas. 114, 12 A 456; In re West Liberty, etc., Roads, 20 Pa. Super. 586. [a] In Pennsylvania the court of quarter sessions has no jurisdiction to lay out a road wholly within a borough. In re South Chester Road, 80 Pa. 370; In re Osceola, etc., Boroughs Road, 27 Pa. Co. 42. 64. Shields v. Ross, 158 Ill. 214, 41 NE 985; Atlantic Coast Electric R. Co. v. Griffin, 64 N. J. L. 513, 46 A 1062; Freeman v. Price, 63 N. J. L. 151, 43 A 432. [a] Half of width within cityProceedings of commissioners of highways attempting to lay out a 59. In re Newport, 39 N. H. 67; highway sixty feet wide on land of In re Sumner, 14 N. H. 268; In re which half the width was situated Bridport, 24 Vt. 176 (holding that in an incorporated city whose charComp. St. [1850] c 22 §§ 28, 44, pro- ter gave it power to open, alter, and viding that, when public necessity abolish streets, being void as to the or convenience requires a highway land inside the city, was also void to be laid out on a line between two as to the half lying outside the city towns, any seven or more freehold-limits, as the statute did not allow 53. Keen v. Fairview Tp., 8 S. D. ers may make application to the a highway less than forty feet wide 558, 67 NW 623 (road within town- selectmen for such road, and if they to be opened by the commissioners. ship on section line of land belong-refuse, to the county court to ap- Shields v. Ross, 158 Ill. 214, 41 NE ing to United States). point commissioners for that pur- 985. 51. William v. Lincoln County, 35 Me. 345. 52. See cases passim. [a] Where the township organi- pose, empowers the commissioners 65. Sparling v. Dwenger, 60 Ind. zation is void, its officers have no to lay out the road on the line be-72 (holding, however, that the order power to open roads. Macey v. Car-tween the towns only, and a location and judgment of the board of comter. 76 Mo. A. 490. by the side of that line and wholly missioners of the county establishwithin one of the towns will be set ing a public highway, where the aside). petition and proceedings thereon are in strict accordance with law, cannot be regarded as a nullity, for the sole reason that one of the termini and a part of the highway are within the corporate limits of an incorporated town). 54. Renard v. Grande, 29 Ind. A. 579, 64 NE 644; Seafield v. Bohne, 169 Mo. 537, 69 SW 1051; Russell v. Leatherwood, 114 N. C. 683, 19 SE 643; Strunz v. Spokane County, 67 Wash. 235, 121 P 75. But see Daggy v. Green, 12 Ind. 303 (under early statute). 55. Peo. V. Nankin Highway Comrs., 15 Mich. 347. 60. Wells v. York County, 79 Me. 522, 11 A 417; In re Hanson, 51 Me. 193; Smith v. Cumberland County, 42 Me. 395; Hermon V. Penobscot County, 39 Me. 583; Windham v. Cumberland County, 26 Me. 406; Harkness v. Waldo County, 26 Me. 353; New Vineyard V. Somerset [a] In Michigan Const. art 10 County, 15 Me. 21; Com. V Cam§ 11, providing that "the board of bridge, 7 Mass. 158; In re Griffin, 27 supervisors of each organized county N. H. 343; Kelley v. Danby, 46 Vt. may provide for laying out high-504. ways, constructing bridges," etc., 61. Windham V. Litchfield, 22 does not necessarily give such su- Conn. 226; Com. v. Stockbridge, 13 pervisors exclusive control over Mass. 294; In re Newport, 39 N. H. a 66. See statutory provisions. [a] In Pennsylvania, where road lies partly within a borough and partly within a township, the court of quarter sessions has jurisdiction of the whole road; having jurisdiction of a part of the road, namely, the part which lies within the township, its jurisdiction extends [53] (3) Roads in Different Coördinate Jurisdictions. While the legislature may confer on the supervisors of one county the power to establish a highway in another county,67 in the absence of statutory authority a county court or board is without authority to lay out a highway in another county.68 In such a case, the officers of each county must take action to establish the highway;69 and a like rule applies where the proposed road lies in two or more towns or townships.? The location of a highway near a town line, but wholly within the town,72 or which connects with another proposed highway in another town,73 is authorized to be done by the commissioners of the town in which the road is located, and the joint boards of the two towns have no jurisdiction.74 70-71 76 ing Primary Power. In New England county com- [§ 54] (4) Refusal or Neglect of Officers Havinto the borough. In re Somerset, | refusal of the selectmen to lay out etc., Road, 74 Pa. 61; In re Osceola, the highway, is necessary to give the etc., Boroughs Road, 11 Pa. Dist. 591, court jurisdiction. Lord v. Dunbar27 Pa. Co. 42; In re Butler St., 2 Pa. ton, 54 N. H. 405. Dist. 40; In re Plymouth Borough, etc., Road, 5 Kulp 115; In re Greenwood Tp. Road, 23 Pa. Co. 85; In re Ransom, etc., Tps. Road, 18 Pa. Co. 417, 2 Lack LegN 279; In re Chester, etc., Road, 2 Chest. Co. 438, 3 Del. Co. 174; In re Verona Borough, etc., 9 Pa. Cas. 114, 12 A 456. 67. Peo. v. Lake County, 33 Cal. 487. 72. Mack v. Highway Comrs., 41 Ill. 378. A 78. Gilley v. Barre, (Vt.) 37 1111; French v. Holt, 53 Vt. 364; Whitingham v. Bowen, 22 Vt. 317. [a] Extent of jurisdiction. On the neglect or refusal of the selectmen to act, the county commission73. Matter of Burdick, 27 Misc. ers have the same powers, and the 298, 58 NYS 759; State v. Clyde, 130 performance of the same duties, and Wis. 159, 109 NW 985 (the fact that none others, that were given to the the supervisors of the two towns selectmen under the petition when met together did not affect the valid-pending before them; and hence the ity of the order laying out the high-commissioners can act only within way). the territorial limits of the town. re Bridport, 24 Vt. 176. [a] A petitioner may apply for a [a] In Indiana (1) under Acts highway terminating at a town line, (1905) c 167 § 21, where proceed- and trust to the adjoining town to ings are instituted for the location treat the balance of the way to his of a highway extending into two or farm as a highway, or to his being more counties, the county board be- able to make other satisfactory arfore whom the petition is first filed rangements as to that part of the has jurisdiction. Cooper v. Harmon, road, and he need not apply under 170 Ind. 113, 83 NE 704. (2) Under the law providing for laying out this statute the board has jurisdic-highways in two or more towns. tion to locate a highway on and along the county line and not otherwise extending into the other county. Cooper v. Harmon, 170 Ind. 113, 83 NE 704. 68. In re Overton Tp. Road, 43 Pa. Super. 273. 69. Peckham v. Lebanon, 39 Conn. 231; In re Durham's Inhabitants, 117 Me. 131, 103 A 9; Detroit v. Somerset County, 52 Me. 210; State v. Wood County, 17 Oh. 184. [a] A way beginning at the end of a town way which extends into another county is not a way extending into two counties. Millett v. Franklin County, 81 Me. 257, 16 A 897. Matter of Burdick, 27 Misc. 298, 58 NYS 759. 74. Andover v. Cooper, 37 S. D. 258, 157 NW 1053. 75. Conn.-Waterbury v. Darien, 9 Conn. 252. Me.-Belfast's App., 53 Me. 431; Orrington v. Penobscot County, 51 Me. 570; North Berwick V. York County, 25 Me. 69; Lisbon v. Merrill, 12 Me. 210. Mass. Monterey v. Berkshire County, 7 Cush. 394; Brown v. Essex County, 12 Metc. 208. N. H.-Simpson v. Orford, 41 N. H. 228; White v. Landaff, 35 N. H. 128; In re Stratton, 21 N. H. 44. Vt.-Gilley v. Barre, 37 A 1111; [b] Joint action is necessary. Dunn v. Pownal, 65 Vt. 116, 26 A State v. Wood County Treasurer, 17484: Crawford v. Rutland, 52 Vt. 412. Oh. 184. 76. North Berwick V. York County, 25 Me. 69. Waiver of objections to jurisdic[c] Separate action. Where a tion of county officers see infra proposed highway runs from a town § 157. in one county into an adjoining town in another county, the superior court in each county has power to lay out the portion of the road within its county; and it is not a valid objection to the laying out of the road within one town that the section in the other cannot be laid out by the court of that county, since the complaint and decree can be postponed until after action has been had in the other county, or can be made in such form as to provide for such contingency. Peckham v. Lebanon, 29 Conn. 231. 70-71. Mack v. Highway Comrs., 41 Ill. 378; Brewer v. Gerow, 83 Mich. 250, 47 NW 113; Oberhelman v. Allen, 26 Oh. Cir. Ct. N. S. 305, 7 Oh. A. 251 (all holding that, where the road is to be on the line between two towns, the commissioners of highways of both towns must act jointly). [a] In New Hampshire a petition praying that a new highway may be laid out within two towns may be filed in the office of the clerk of the supreme court, or may be presented to the selectmen of such towns acting jointly; and neither such presentation, nor the neglect or 77. Haynes v. Satterfield, 2 Tex. Unrep. Cas. 299 (where the commissioners' court has full power over the subject of opening roads, parties are required ordinarily to apply to that court for relief with respect to that matter, and that until the party has exhausted his remedies in that court he is not entitled to invoke the equitable powers of the district court). [a] In New York (1) under L. (1890) с 568 $ 94, providing that, where it is proposed to lay out a highway extending from one county to another, and the highway commissioners of the two counties cannot agree, they may certify that fact to the court, which may thereupon appoint commissioners to determine the matter, the fact of the disagreement of the highway commissioners is jurisdictional. Matter of Barrett, 7 App. Div. 482, 40 NYS 266. (2) Highway L. (Cons. L. c 25) §§ 204, 206, provides that, in case the superintendents of highways shall disagree, the supreme court shall appoint three commissioners. Matter of Donley, 69 Misc. 196, 125 NYS 274. In 79. In re Patten, 16 N. H. 277. 80. In re Toppan, 24 N. H. 43; Moore v. Chester, 45 Vt. 503. [a] Delay sufficient to oust jurisdiction. The neglect of the selectmen to lay out a road for the space of seven months after presentment of a petition to them, and their separating at the end of that time without adjournment or recording their proceedings, constitute such neglect as will give jurisdiction to the court of common pleas. In re Stratton, 21 N. H. 44. [b] Delay insufficient to oust jurisdiction.-The selectmen to whom a petition for a highway was first presented neglected to act upon it while they were in office from December, 1848, until March, 1849, it appearing that their refusal to lay out the highway was recorded Dec. 24, 1849, and petitioners did not file their petition to the court until Dec. 9, 1850. It was held that the delay did not oust the court of its jurisdiction. In re Toppan, 24 N. H. 43. 81. In re Patten, 16 N. H. 277. 82. Wolcott v. Pond, 19 Conn. 597; Plainfield v. Packer, 11 Conn. 576; Monterey V. Berkshire County, 7 Cush. (Mass.) 394; In re Newport, 39 N. H. 67; In re Patten, 16 N. H. 277; Crawford v. Rutland, 52 Vt. 412; Moore v. Chester, 45 Vt. 503. [a] Report conclusive-On a petition asking for the laying out of a new highway in two towns, originally presented to the court of common pleas, if it appears by the report of the county commissioners to whom it is referred, that, in their judgment, no new highway is really needed except in one town, and that consequently none has been actually laid out except in that town, such report is conclusive, that in the opinion of the commissioners, the petition should have been presented in the first instance to the selectmen of that town alone, and that the court has no original authority to establish the road actually laid out, and the report, in such a case, should be rejected, and the petition dismissed. In re Newport, 39 N. H. 67. [b] Evidence of neglect or refusal.-The averment of neglect and refusal by the selectmen to lay out a highway may be supported by any evidence from which the fact may be fairly inferred. Waterbury v. Darien, 9 Conn. 252. or of the town to approve the way as laid out,83 is a prerequisite to the jurisdiction of the county commissioners or court, and it is the duty of the court to decide the question.84 But the fact that the petitioners are different from those who petitioned the selectmen is immaterial.85 The highway sought to be established must be one within the authority of the selectmen to lay out.86 Subsequent action of selectmen. After the court has acquired jurisdiction by the neglect of selectmen to lay out a road and the filing in court of 83. Lewiston v. Lincoln County, appellate jurisdiction conferred upon 30 Me. 19 (holding further that the them by Rev. St. c 24 § 71. Montown cannot be said to have delayed terey v. Berkshire County, 7 Cush. or refused to approve the way where (Mass.) 394. (3) Whether a town the selectmen had made no proper way, for the laying out of which apreturn or report of the laying out of plication is made to the county comsuch way). missioners, on the refusal of the 84. In re Newport, 39 N. H. 67; selectmen to lay it out, is for the Dunn v. Pownal, 65 Vt. 116, 26 A use of the town within which it is 484; Crawford v. Rutland, 52 Vt. 412. situated, is a question exclusively [a] Пlustration.-Where, on a within the discretion of the commispetition for the appointment of com- sioners to decide. Monterey v. Berkmissioners to lay out a highway, de- shire County, 7 Cush. (Mass.) 394. fendant moved to dismiss on the ground that its selectmen had not at the time of the bringing of such petition refused to lay out a highand witnesses were produced by both parties, and trial had by the court, it was error for the court, on disagreeing, not to decide the issues raised, and to adjudge that petitioners were entitled as a matter of right to the appointment of commissioners. Dunn v. Pownal, 65 Vt. 116, 26 A 484. way, [b] Evasion of statute.-(1) On a petition for a highway in two or more towns, where it appears by the report of the commissioners that the object of petitioners is to obtain a road in one town alone, and thus evade the statute requiring such petitions to be first presented to the selectmen, the petition will be dismissed. In re Newport, 39 N. H. 67; Hopkinton v. Winship, 35 N. H. 209. (2) However, on the presentation of a petition for a way in two or more towns, the court will not, prior to the reference of the petition to the commissioners, inquire into the fact whether the object of petitioners be not to obtain a road in one town alone, and the statute requiring such petitions to be first presented to the selectmen thus to be evaded. Hopkinton v. Winship, 35 N. H. 209. 85. Simpson v. Orford, 41 N. H. 228; Moore v. Chester, 45 Vt. 503. 86. Lisbon v. Merrill, 12 Me. 210; Monterey V. Berkshire County, 7 Cush. (Mass.) 394; Crosby v. Hanover, 36 N. H. 404; In re Griffin, 27 N. H. 343. [b] In California Pol. Code § 2681, providing that "any ten freeholders who will be accommodated by the proposed road, two of whom must be residents of the road district wherein any part of the proposed road is situated, and who are taxable therein for road purposes, may petition therefor," etc., only requires that two of the ten freeholding petitioners shall be taxable in the district for road purposes. San Luis Obispo County v. Simas, 1 Cal. A. 175, 81 P 972. [c] In Indiana the board of commissioners have no jurisdiction unless it is established that twelve of the persons whose names are signed to the petition are freeholders of the county in which the highway is proposed to be located, and that six of them reside in the immediate neigh [b] Petition to discontinue as well as lay out.-Although the selectmen, in the petition to them. were requested to discontinue an old way, which they had no authority to do, as well as to lay out a new one, the county commissioners have jurisdiction. Brown v. Essex County, 12 Metc. (Mass.) 208. [c] Highways in border towns.-borhood of such highway. Hall v. The court of common pleas have jurisdiction of petitions for highways in towns bordering on adjacent states, where the petitions have been presented to the selectmen of such towns and refused by them. The fact that the highway prayed for is only a part of one which may be or has been made in the adjoining states does not affect the jurisdiction. Crosby v. Hanover, 36 N. H. 404. [d] Highway extending into another town.-Selectmen have no authority to lay a highway in their town, where such highway forms but a part of a highway extending into another town, the whole of which, if any, is required for the public accommodation; and hence, a petition to the court of common pleas, founded on the refusal of the selectmen to lay such part of a road, cannot be sustained. In re Griffin, 27 N. H. 343. 79. 87. In re Stratton, 21 N. H. 44. 89. Waiver of objections to number or qualifications of petitioners see infra § 77. 90. See statutory provisions; and cases infra this note and note 91 et seq. [a] In Kansas a petition for a highway, under Gen. St. (1889) c 89 § 29, relating to furnishing an outlet to one without access to a public highway, need only be signed by the petitioner interested to give the board of commissioners jurisdiction to act in the premises. Butts v. Geary County, 7 Kan. A. 302, 53 McDonald, 171 Ind. 9, 85 NE 707; [d] In Oregon, under Lord L. § 6279, "the County Court acquires jurisdiction in proceedings to establish highways by means of a petition signed by at least twelve freeholders residing in the road district where the road is to be laid out." Christensen v Lane County, 90 Or. 401, 407, 175 P 845. [e] In Texas (1) under Rev. St. (1911) art 6876, the requirement that a petition to open a secondclass road be signed by at least eight freeholders is jurisdictional, notwithstanding arts 6860, 6871, empowering commissioners' court to open roads on its own motion. Haverbekken v. Hale, 109 Tex. 106, 204 SW 1162. (2) But under Rev. St. art 4671, giving commissioners' courts the power, and making it their duty, to lay out and open public roads "when necessary," it was held that since that court had authority to establish a road on its own motion. it was not without jurisdiction to appoint a jury of view and establish a road on petition of freeholders, because of the persons who signed the petition not exceeding five were freeholders residing in any road precinct through which the road was sought to be established. Huggins v. Hurt, 23 Tex. Civ. A. 404, 56 SW 944. 92. See statutory provisions. [a] Twelve householders.-Bradford v. Cole, 8 Fla. 263; Canaday v. Hull, 104 Kan. 785, 181 P 121; OlPphant v. Atchison County, 18 Kan. 386; Wabaunsee County v. Muhlenbacker, 18 Kan. 129; Willis V. Sproule, 13 Kan. 257. [a] Character of way.-(1) The county commissioners are not restricted in laying out a way, where the selectmen of a town shall unreasonably refuse. to a way exclusively for the benefit of one or more individuals; but the statute is in tended to embrace those cases also where the way should be adjudged to be of general benefit. Lisbon v. Merrill, 12 Me. 210. (2) The authority conferred upon selectmen 771. by Rev. St. c 24 § 66, to lay out [b] In Texas, a petition for the town ways for the use of their re-opening of a neighborhood road is spective towns, is limited to roads sufficient if signed by one person, having their termini within the where he lives in an inclosure. Galtown; but it is no objection to such veston, etc., R. Co. v. Baudat, 18 Tex. laying out, that the road is intend- Civ. A 595, 45 SW 939. ed as one link in a chain of continuous roads; that it is for the convenience of the inhabitants only from its connection with some great thoroughfare; and that when established it will be for the use of the public generally, as well as of the inhabitants of the town in which it is situated; and if selectmen unreasonably neglect or refuse to lay out such way, the county commissioners may lay it out, under the [b] An unmarried man who keeps house and employs domestic servants is a householder, within Misc. L. c 50 tit 1 § 2, calling for a petition by householders for the establishment of a road. Kamer v. Clatsop County. 6 Or. 238. 93. See statutory provisions. [a] Five landowners.-Terrell v. Drake, 145 Ky. 13, 140 SW 53; Louisville, etc., R. Co. v. Gerard, 130 Ky. 18, 112 SW 915. 91. See statutory provisions. [a] Meaning of "freeholder." Under L. (1860) c 31 § 2, providing that power to lay out a highway on or between lines of towns can be exercised only on petition of not less than "thirty resident freeholders," the term "freeholder" means a person who resides in the town and [b] All owners of property afowns a freehold interest in land sit- fected.-Under Rev. St. (1908) § 5850 uated therein. Damp v. Dane, 29 providing for establishing highways Wis. 419. on petition of all the owners of |