Two petitions for the establishment of the same road may be presented at the same time and may be treated as one petition.45 46 [67] (2) Formal Requisites. In the absence of any express or implied provision requiring the petition to be in writing, it has been held that an oral application is sufficient, especially where no objection is made thereto. As a rule, however, the statutes require a petition in writing 47 signed by the petitioners, 48 or a certain number of them,* although a failure of the petitioners to sign the petition at the end is not absolutely fatal if their names appear in some other part.50 The petition should be addressed to the court or board having jurisdiction to establish highways.51 49 Verification. Unless so required by statute, the petition need not be verified by oath or affirmation.52 [f] In Washington (1) "by the act of 1911, Rem. Code § 5623-2, the commissioners themselves are empowered by unanimous vote to initiate the proceedings to establish any road without any petition." State v. King County Super. Ct., 101 Wash. 260, 265, 172 P 254. (2) Under the former law it was the petition which gave the county commissioners jurisdiction to act in the premises. They had no authority to call the road into existence by their own mandate. Megrath v. Nickerson, 24 Wash. 235, 64 P 163. 45. Gifford v. Baker, 158 Ind. 339, 62 NE 690. 46. Hawkins v. Trousdale County Justices, 12 Lea (Tenn.) 351 (where a statute did not absolutely require that the application should be made by a petition, although it fairly implied this by reference to "the petition," if the court entertained an informal oral application, and made an order specifying where the road should begin and end, and its general direction, that would be sufficient to give jurisdiction to the court, especially when no objection was made to the form of the application). See also Com. v. Coombs, 2 Mass. 489 (where it is stated that the application "regularly" ought to be in writing). 47. See cases infra note 48. 48. Colo.-White V. Arvada, 60 Colo. 343. 153 P 696. Ill.-Peo. v. Spangler, 150 Ill. A. 509. Ind. Cooper v. Harmon, 170 Ind. 113, 83 NE 704. Iowa.-Hatch v. Lyon County, 170 Iowa 82, 152 NW 28. Filing. Where the petition is delivered to the proper officer or tribunal, it need not be "filed" in the technical sense.5 53 A bond is required by some statutes to be filed with the petition.54 [§ 68] (3) Sufficiency 55-(a) In General. A petition for the establishment of a highway should contain all the facts required to be stated therein by statute in order to confer jurisdiction.56 It should state the character of the relief which is sought,57 and the facts entitling petitioners to such relief;58 but need not state the reason for their action in the matter.59 Nor is it essential that the petition should follow the exact language of the statute. Language unmistakably indicating_its object and purpose will be held sufficient.60 But jurisdiction does not depend upon the sufficiency or the correctness of the averments of the petition, " filed in the auditor's office." Hatch 49. Hays v. Parrish, 52 Ind. 132. 51. State v. Barlow, 61 Iowa 572, 16 NW 733; In re Union Tp. Road, 29 Pa. Super. 573; Tucker v. Eden, 68 Vt. 168, 34 A 698. [a] Clerk of board.-It is 110 cause for complaint that the petition runs to the clerk of the board of supervisors instead of the board itself. State v. Barlow, 61 Iowa 572, 16 NW 733. [b] Wrong court.-A petition is not fatally defective because it is addressed to the wrong court, where it was filed and indorsed in the proper court, and all subsequent proceedings, including the appointment of viewers, and the confirmation of their report, were made by that court. In re Union Tp. Road, 29 Pa. Super. 573. [c] An omission in the address, not going to the jurisdiction, cannot be taken advantage of by a motion to dismiss. Tucker v. Eden, 68 Mass.-Hyde Park V. Norfolk Minn. Johnson V. Clontarf, 98 30 Pa. Co. 396. Mo.-Glenn v. Wright County Ct., 280 Mo. 637. 215 SW 253. Nebr. State V. Otoe County, 6 Nebr. 129. 52. In re Lower Merion Tp. Road, [a] Sureties.-The act of April § 155. On collateral attack see infra 56. Ida. Canyon County v. Toole, 9 Ida. 561, 75 P 609. S. D.-Wickre v. Independence Tp., 31 S. D. 623, 141 NW 973. Wis. Damp v. Dane, 29 Wis. 419. [a] Signing with initials of christian name (1) and full surname is sufficient. Pittsburgh, etc., R. Co. v. Gregg, 181 Ind. 42, 102 NE 961. (2) The fact that many of the signers of such petition signed their christian names by the initials does not warrant the dismissal of the petition, but merely entitles defendants upon proper motion to have the full christian and surname of each petitioner entered on record. Cooper v. Harmon, 170 Ind. 113, 83 NE 704. [b] Written consent of landown-County, 60 Me. 328. ers (1) Code § 1512, provides roads N. J.-In re Sussex County, etc., may be established "if the written Road, 13 N. J. L. 157. consent of all the owners of the land Or.-Kemp v. Polk County, 46 Or. to be used for that purpose be first 546, 81 P 240. [29 C. J.-27] Ill. Randolph v. Etna Highway Me. Goodwin V. Sagadahoc [a] Petition held sufficient.Breitweiser v. Fuhrman, 88 Ind. 28. 57. Stauffenberg V. Makeever, (Ind. A.) 125 NE 584; Lehmann v. Rinehart, 90 Iowa 346, 57 NW 866. [a] "Establishment need not be asked in terms, but there must be something in the petition which clearly indicates the relief sought, else jurisdiction to act is not conferred upon the board." Lehmann V. Rinehart, 90 Iowa 346, 349, 57 NW 866. [b] Illustration.-A petition asking that a described highway "be without stating the relief desired, was held to be insufficient. Lehmann v. Rinehart, 90 Iowa 346, 57 NW 866. [c] Both establishment and improvement of highway should be asked for in the petition under some statutes. Stauffenberg v. Makeever, (Ind. A.) 125 NE 584. 58. Lowndes County Comrs. Ct. v. Bowie, 34 Ala. 461; Sullivan v. Cline, 33 Or. 260, 54 P 154; In re Washington Tp. Road, 36 Pa. Co. 577. [a] The entire situation should be disclosed. In re Washington Tp. Road, 36 Pa. Co. 577. [b] Averment of ultimate facts is sufficient. Sullivan v. Cline, 33 Or. 260, 54 P 154. 59. Strong v. Coos County, 63 Or. 357. 127 P 963. 60. Iowa. Stevens v. Cerro Gordo V. Vt.-Winooski Lumber, etc., Co. v. Colchester, 57 Vt. 538. [a] "No particular words or form of words are required (1) by the statute in such application, and the greatest technical accuracy and precision is not to be expected." Windham v. Cumberland County, 26 Me. 406, 409. (2) It is immaterial that the petition uses the word "road" instead of "highway." Windham v. Cumberland County, 26 Me. 406. (3) Or "highway" instead of "townway." Dartmouth v. Bristol County, 153 Mass. 12, 26 NE 425. (4) Or "open" instead of "establish." Stevens v. Cerro Gordo County, 41 Iowa 341; McCollister v. Shuey, 24 Iowa 362. (5) Or "lay out." Winooski Lumber, etc., Co. v. Colchester, 57 Vt. 538. (6) Or "locate and establish" instead of "lay out." Feagins v. Wallowa County, 62 Or. 186, 123 P 902. (7) Or "examine into the expediency of establishing" instead of "establish." State V. Barlow, 61 Iowa 572, 16 NW 733; State v. Pitman, 38 Iowa 252. (8) But a petition that the highway "be opened for travel" was held to be insufficient to authorize the establishment of a but upon the subject matter to which it relates."1 A defective petition for a highway,62 or a petition for a highway which also contains a prayer for relief partially beyond the power of the board to grant,63 will nevertheless effectually invoke its jurisdiction, and clothe it with power to adjudicate upon the matter presented. Quali 64 [§ 69] (b) Particular Averments-aa. fication of Petitioners. While as a matter of practice it is better to state upon the face of the petition facts showing the signers to be qualified, it has been held that such a showing is not necessary unless required by statute.65 It is sufficient if their qualification appears either from the petition,66 or from the record of the proceedings of the commissioners,67 or from the evidence adduced on the hearing.6 But other courts have decided that the application must show that the signers have the necesroad. Curtis v. Pocahontas County, 72 Iowa 151, 33 NW 616. 68 61. Lowndes County Comrs. Ct. v. Bowie, 34 Ala. 461, 465; Chicago, etc., R. Co. v. Sutton, 130 Ind. 405, 30 NE 291; Harris v. Curtis, 334 Ind. A. 438, 72 NE 1102. "The law neither requires the court to grant an application, because of the fullness and sufficiency of the allegations of the petition, nor to refuse it because of their insufficiency." Lowndes County Comrs. Ct. v. Bowie, supra. 62. Chicago, etc., R. Co. v. Sutton, 130 Ind. 405, 30 NE 291; Harris v. Curtis, 34 Ind. A. 438, 72 NE 1102. 63. Chicago, etc., R. Co. v. Sutton, 130 Ind. 405, 30 NE 291; Harris v. Curtis, 34 Ind. A. 438, 72 NE 1102. 64. Bockoven v. Lincoln Tp., 13 S. D. 317, 83 NW 335. 65. Cal. Humboldt County v. Dinsmore, 75 Cal. 604, 17 P 710. See also Tehama County v. Bryan, 68 Cal. 57, 8 P 673 (where the petition was held sufficient in this respect). Ill. Afton Highway Comrs. v. Ellwood, 193 III. 304, 61 NE 1033; Peo. v. Schwiesow, 200 Ill. A. 238; Fletcher v. Duncan, 166 Ill. A. 379. Ind.-Pittsburgh, etc., R. Co. V. Gregg, 181 Ind. 42, 102 NE 961; Etna L. Ins. Co. v. Jones, 173 Ind. 149, 89 NE 871 [overr Conaway v. Ascherman, 94 Ind. 187]; Hall v. McDonald, 171 Ind. 9, 85 NE 707; Washington Ice Co. v. Lay, 103 Ind. 48, 2 NË 222; Brown v. McCord, 20 Ind. 270. Iowa. Keyes v. Tait, 19 Iowa 123. Kan. Oliphant v. Atchison County, 18 Kan. 386; Wabaunsee County v. Muhlenbacker, 18 Kan. 129; Willis v. Sproule, 13 Kan. 257. sary qualifications.69 [70] bb. Names of Owners or Occupants of Ky. Nischen N. J.-In re Sussex, etc., Counties Ind.-Ryder v. Horsting, 130 Ind. Mich.-Cowing v. Ripley, 76 Mich. Minn.-Lyle v. Chicago, etc., R. Mo.-Ripkey v. Binns, 264 Mo. 505, Nev.-Godchaux v. Carpenter, 19 N. Y.-Peo. v. Whitney's Point, 32 [d] In Indiana (1) the statute requires that one of the three persons designated, the owner, the occupant, or the agent, shall be named. Ryder v. Horsting, 130 Ind. 104, 29 NE 567, 16 LRA 186; Porter v. Stout, 73 Ind. 3; Meyers v. Brown, 55 Ind. 596. (2) But it does not require that the owner of, the occupant of, and the agent for, the same land shall all be named in the petition. Ryder v. Norsting, 130 Ind. 104, 29 NE 567, 16 LRA 186; Milhollin v. Thomas, 7 Ind. 165. (3) Nor is it necessary that the petition shall state who are owners and who are occupants, but it will bè sufficient if all proper parties are named. Porter v. Stout, 73 Ind. 3; Meyers v. Brown, 55 Ind. 596. 71. Navin v. Martin, (Mo. A.) 102 SW 61; Mulligan v. Martin, 125 Mo. A. 630, 102 SW 59. 72. Hughes v. Sellers, 34 Ind. 337; Bockoven v. Lincoln Tp., 13 S. D. 317, 83 NW 335. [a] Illustrations.—(1) “Giving the initials only of the Christian names of individual owners, and the firm names only of owners in partnership, is not a compliance with the statute." Vawter V. Gilliland, 55 [a] Husband and wife.-(1) In a Ind. 278, 281. (2) It is not a suffiproceeding to open a highway cient designation of the owners to through lands occupied by a hus-name them as the heirs of a certain band and wife, although owned by person. Hughes v. Sellers, 34 Ind. the wife, it is sufficient to name the 337. (3) But such a defect will not husband as the occupant thereof, in invalidate the proceedings on colthe petition. Porter v. Stout, 73 Ind. lateral attack. Porter v. Stout, 73 3; Kothe v. Berlin Tp., 19 S. D. 427, Ind. 3. 432, 103 NW 657. (2) "While the husband would not ordinarily be authorized to act for the wife in such S. D. Bockoven v. Lincoln Tp., 13 a proceeding, and conclude her S. D. 317, 83 NW 335. rights, yet where he does act with Wash.-State V. Chelan County her knowledge and consent, and Super. Ct., 108 Wash. 58, 182 P 962. acts as her agent generally in the 66. Afton Highway Comrs. v. Ell-management of her business pertainwood, 193 Ill. 304, 61 NE 1033; Peo.ing to the property, we are of the v. Schwiesow, 200 I11. A. 238; Flet- opinion that she will be estopped cher v. Duncan. 166 Ill. A. 379. Mo.-Snoddy v. Pettis County, 45 Mo. 361; Fisher v. Davis, 27 Mo. A. 821. Or.-Bewley v. Graves, 17 Or. 274, 20 P 322. from questioning such proceedings [b] Immaterial variance. The fact that the name of one of the landowners through whose land the proposed highway was to run was stated to be the "Indianapolis & Vandalia Railroad Co.," instead of the "Terre Haute & Indianapolis Railroad Co.," was not such a variance as could in any way injure or deceive other owners affected by the road, so as to entitle them to enjoin the opening of the highway. Schmidt v. Wright. 88 Ind. 56. 73. Ripkey v. Binns, 264 Mo. 505, 175 SW 206. 67. Afton Highways Comrs. V. Ellwood, 193 Ill. 304, 61 NE 1033; Jefferson County v. Cowan, 54 Mo. 234; Fisher v. Davis, 27 Mo. A. 321. [b] The trustee and beneficiary 68. Cal. Humboldt County v. in a deed of trust, as such, are not 74. Ripkey v. Binns, 264 Mo. 505, Dinsmore, 75 Cal. 604, 17 P 710. owners within the meaning of such 175 SW 206; Halter v. Leonard, 223 Ind.-Pittsburgh, etc.. R. Co. V. a statute. and the failure to list Mo. 286, 122 SW 706: Bennett v. Gregg, 181 Ind. 42. 102 NE 961; them among the resident property Hall, 184 Mo. 407, 83 SW 439. Brown v. McCord, 20 Ind. 270. owners does not affect the court's [a] A map accompanying the peMo.-Snoddy v. Pettis County, 45 jurisdiction. Ripkey v. Binns, 264 tition, and showing the names of Mo. 361; Fisher v. Davis, 27 Mo. A. Mo. 505, 175 SW 206; Warren v. Gib- the landowners, may be considered 321. son, 40 Mo. A. 469. in determining the sufficiency of the [c] Highway crossing railroad.-petition, although it was not marked Where the route of a proposed high- "Filed" by the clerk. Bennett V. way crosses a railroad, the petition Hall, 184 Mo. 407, 83 SW 439. should name the railroad company 75. In re Catharine Tp. Road, 76 as one of the owners of the land Pa. 189: In re Salisbury Tp. Road, crossed by it. Lyle v. Chicago, etc., 20 Pa. Dist. 735. S. D.-Bockoven v. Lincoln Tp., 13 S. D. 317, 83 NW 335. Wash. State V. Chelan County Super. Ct., 108 Wash. 58, 182 P 962. 69. Ark.-Johnson V. Ark. 604, 117 SW 770. West, 89 disagree as to the necessity of running a highway. between two towns in different counties, the supreme court shall appoint three commissioners, the disagreement of the superintendents must be shown.84 [73] ee. Description of Road. The petition must contain a description of the proposed road in order to confer jurisdiction to establish it,85 but, as the reason for this requirement is to give parties interested such information as will enable them to be present and be heard,88 the description, while it must not be vague and indefinite,87 need not be expressed with great technical precision.88 The petition need not contain a detailed survey of the line of the road, where that is impracticable.89 Nor is it necessary that the road be described by reference to government subdivisions or by other monuments of which the court takes judicial notice. It is sufficient if the description is so definite and certain as to enable persons familiar with the locality to locate the way,91 and to enable a sur [72] dd. Neglect or Refusal of Selectmen to Establish Road. Under a statute authorizing an application to the county court for a highway from place to place within the same town only where the selectmen neglect or refuse to lay it out, the averment of such neglect or refusal is indispensable to give the court jurisdiction,so and it must appear from the record that the averment is true.81 It is not necessary to allege a special demand or request of the selectmen to lay out such highway.82 The averment of neglect and refusal may be supported by any evidence from which that fact may fairly be inferred.83 Under a statute providing that, in case the superintendents of highways shall 76. McIntyre v. Marine, 93 Ind. 18 Conn. 162; In re Patten, 16 N. H. description.-(1) A description of the 193; Bockoven v. Lincoln Tp., 13 S. 277. proposed highway as beginning at a D. 317, 83 NW 335. [a] Averments held insufficient.- certain point, and "thence southerly [a] A collateral attack on the (1) This requirement is not satisfied to the C. river to low-water mark," proceedings is not justified by the by an averment that the town neg- was insufficient. Clement v. Burns, failure of the petition to contain lected and refused to lay out the 43 N. H. 609. (2) A description such a statement. Crossley v. highway, the selectmen being the reading, "thence bearing southerly, O'Brien, 24 Ind. 325, 87 AmD 329; agents of the law, and not of the to avoid Flat Creek, and keeping on McIntyre v. Marine, 93 Ind. 193. town for this purpose. Torrington the most favorable ground, running 77. Bockoven v. Lincoln Tp., 13 S. v. Nash, 17 Conn. 197. (2) An aver-easterly and northerly," in and D. 317, 83 NW 335. ment that the selectmen have neg-through the land of A, to a given 78. Story v. Little, 135 Ky. 115, lected and refused to pay the dam- point, was too indefinite. Scraper v. 121 SW 1023. But see Morris v. ages assessed on a highway laid out Pipes, 59 Ind. 158. (3) Other deSalle, 19 SW 527, 14 KyL 117 (fail-by them, and have also neglected scriptions held too uncertain. Little ure to state the necessity for the road to enable the appellants or the public to reach the places designated by the statute is fatal). [a] In Alabama, although the petition should properly state facts to show the expediency of the road prayed for, yet it is not demurrable for omitting to do So. Lowndes County Comrs. Ct. v. Bowie, 34 Ala. 461. [b] In Indiana, in a petition to locate a highway under Acts (1905) c 167 § 21, it is not necessary to allege that the proposed highway will be of public utility, or that the cost thereof will be less than the benefits, since it is the duty of the county commissioners to appoint viewers, if the jurisdictional facts exist, and thereafter the matters suggested are to be considered. Cooper v. Harmon, 170 Ind. 113, 83 NE 704; Conaway v. Ascherman, 94 Ind. 187; Bowers v. Snyder, 88 Ind. 302. 79. Plainfield v. Packer, 11 Conn. 576; Windsor v. Field, 1 Conn. 279; Lockwood v. Gregory, 4 Day (Conn.) 407. and refused to open such highway, v. Baskin, 135 Ga. 851, 70 SE 796; Hayford v. Aroostook County. 78 Me. 153, 3 A 51; Dahlin v. Eddy, 125 Minn. 359, 147 NW 240; Clement v. Burns, 43 N. H. 609. [b] In Maine (1) the petition [b] A description which is immust allege that the refusal was un- possible of location will render void reasonable. Goodwin v. Sagadahoc the entire proceedings for the estabCounty, 60 Me. 328. (2) But a spe-lishment of a town road. Dahlin v. cific statement of all the acts and Eddy, 125 Minn. 359, 147 NW 240. facts which constitute an unreason- 88. Ill-Henline v. Peo., 81 Ill. able refusal is unnecessary. True v. 269. Freeman, 64 Me. 573. 576. 81. Plainfield v. Packer, 11 Conn. 252. 83. 252. [a] Ind.-Etna L. Ins. Co. v. Jones, An affidavit stating: "I am Md. Jenkins v. Riggs, 100 Md. 427, 59 A 758. Mich.-Page v. Boehmer, 154 Mich. 693. 118 NW 602. 85. Ill. Peo. v. Schwiesow, 200 Ind. -De Long v. Schimmel, 58 Ky.--Waller v. Syck, 146 Ky. 181, Me.-Bliss v. Blaisdell, 110 Me. 527, 87 A 374; Blaisdell v. York, 110 Me. 500, 87 A 361; Cushing v. Webb, 102 Me. 157, 66 A 719; Hayford v. Aroostook, 78 Me. 153, 3 A 51. Minn.-Martinson V. Eagle Creek, 129 Minn. 392, 152 NW 761; State v. Hager, 119 Minn. 512, 138 NW 935. 86. Blaisdell v. York, 110 Me. 500, 506, 87 A 361 [a] Illustrations.-(1) A petition was sufficient which stated that, in the opinion of petitioners, common convenience and necessity required that a new highway should be laid out between the two places, and that thereby the distance would be greatly lessened, and not only the travel in the immediate neighborhood, but also the general travel, be greatly facilitated. Plainfield V. Packer, 11 Conn. 576. (2) A petition which alleged that the old road was "very circuitous, hilly, and on bad ground," and that a new road might be laid out between the same termini "so as to greatly accommodate the "The chief reason for this requirepublic, with little expense to the ment is to give all parties, over town, or injury to private property," whose land the proposed way is to was sufficient, without alleging that be laid, and all others whose interthe highway "is wanting," or that it ests may be affected thereby. such would be of "common convenience information, through the public noor necessity." Windsor v. Field, 1 tice on the petition, as will enable Conn. 279. them to be present and be heard." 80. Torrington v. Nash, 17 Conn. Blaisdell v. York, supra. 197; Plainfield V. Packer, 11 87. Blaisdell v. York. 110 Me. 500, Conn. 576; Waterbury v. Darien, 987 A 361; Dahlin v. Eddy, 125 Minn. Conn. 252; Treat V. Middletown, 359, 147 NW 240. 8 Conn. 243; Waterbury v. Darien, [a] Illustrations of Minn.-Martinson v. Eagle Creek, N. D.-Semerad v. Dunn County, 35 N. D. 437, 440, 160 NW 855. [cit Cyc]. [a] A petition for the location of a county road should not be too critically judged, especially where the termini are plainly fixed. Bryant v. Penobscot County, 79 Me. 128, 8 A 460. [b] The mere fact that the word "private" is used in the petition and other papers and proceedings relating to the establishment of a road as a part of the description thereof, will not affect the validity of a road so established. Johnson County v. Minnear, 72 Kan. 326, 83 P 828; Howard v. Schmidt, 70 Kan. 640, 79 P 142. 89. Geo. Palmer Lumber Co. V. Wallowa County, 60 Or. 342, 118 P 1013. 90. Martinson v. Eagle Creek, 129 Minn. 392, 152 NW 761. 91. Ill-Henline v. Peo., 81 Ill. 269; Peo. v. Schwiesow, 200 Ill. A. 238. Ind.-Adams Harrington, 114 Ind. 66, 14 NE 603; Clift v. Brown, 95 Ind. 53; Conaway v. Ascherman, 94 Ind. 187; Smith v. Weldon, 73 Ind. insufficient 454. V. veyor to run it.92 Thus the petition must describe with reasonable certainty the terminal points of the proposed way,93 and sufficiently specify its general Kan. Casey v. Kilgore, 14 Kan. | 21 N. M. 95, 152 P 1140. 478. Nebr. Dettman V. Pittenger, 89 Nebr. 825, 132 NW 407. N. H.--Wentworth v. Milton, 46 N. H. 448; In re Knowles, 22 N. H. 361. N. J.-State v. White, 35 N. J. L. 203; State v. Northrop, 18 N. J. L. 271; State v. Waldron, 17 N. J. L. 368. N. D.-Kleppe v. Odin Tp., 40 N. D. 595, 169 NW 313. Or.-Ames v. Union County, 17 Or. 600, 22 P 118. Pa.-In re Abington Tp. Road, 2 Montg. Co. 92. S. D.-Yankton County v. Klemisch, 11 S. D. 170, 76 NW 312. Wis.-State v. O'Connor, 78 Wis. 282, 47 NW 433. [a] Description by reference to monuments, which in the nature of things are patent to observation, is sufficient. Martinson v. Eagle Creek, 129 Minn. 392, 152 NW 761. [b] Descriptions held sufficiently certain. McDonald V. Payne, 114 Ind. 359, 16 NE 795; Clift v. Brown, 95 Ind. 53; Casey v. Kilgore, 14 Kan. 478; Blaisdell v. York, 110 Me. 500, 87 A 361; Acton v. York County, 77 Me. 128; Martinson v. Eagle Creek, 129 Minn. 392, 152 NW 761; Thompson v. Trowe, 82 Minn. 471, 85 NW 169; Peo. v. Taylor, 34 Barb. (N. Y.) 481; State v. O'Connor, 78 Wis. 282, 47 NW 433. 92. Ind.-Etna L. Ins. Co. v. Jones, 173 Ind. 149, 29 NE 871; Wells v. Rhodes, 114 Ind. 467, 16 NE 830; Adams v. Harrington, 114 Ind. 66, 14 NE 603; Conaway v. Ascherman, 94 Ind. 187; McDonald V. Wilson, 59 Ind. 54; Fancher v. Coffin, 41 Ind. A. 489, 84 NE 354. Nebr.-Donovan v. Union Pac. R. N. Y.-Satterly v. Winne, 101 N. Y. [a] The maxim that "that is cer- (Mass.) 351; State v. Green, 18 N. J. L. 179. [f] Terminus on road building or to be built.-(1) The terminus may be described as on a road "now building" or which is asked for by the same petition. Acton v. York County, 77 Me. 128; In re West Goshen Roads, 7 Pa. Co. 250. (2) But a petition for a public road is fatally defective which specified that the road is "to connect with a proposed road" in another county. In re Overton Tp. Road, 43 Pa. Super. 273. [b] Descriptions of termini held [g] Designation of county or sufficient. Sisson V. Carithers, 35 township.-(1) Ordinarily a petition Ind. A. 161, 72 NE 267, 73 NE 924; to appoint viewers to lay out a pubMcDonald v. Pope County Road Dist. lic road must state the county or No. 3, 292 Ill. 386, 127 NE 29; Cool- township in which it is to be opened. man v. Fleming, 82 Ind. 117; John- In re Private Road, 1 Pearson (Pa.) son v. Clayton County, 61 Iowa 89, 170; In re New Hanover Tp. Road, 2 15 NW 856; Blaisdell v. York, 110 Montg. Co. (Pa.) 40. (2) But where Me. 500, 87 A 361; Bliss v. Blaisdell, the terminal points are described 110 Me. 527, 87 A 374; Packard v. with such particularity that no difAndroscroggin County, 80 Me. 43, 12 ficulty can be had in locating them, A 788; Great Scott v. Robinson, 115 it is not necessary to state in what Minn. 247, 132 NW 204; State v.county or township such points are. Rapp, 39 Minn. 65, 38 NW 926; State Sutherland v. Holmes, 78 Mo. 399; v. Macdonald, 26 Minn. 445, 4 NW Oxford Tp. v. Brands, 45 N. J. L. 1107; Wentworth v. Milton, 46 N. H. 332; State v. Cake, 24 N. J. L. 516; In 448; In re Knowles, 22 N. H. 361; re South Abington Tp. Road, 109 Pa. Biddle v. Dancer, 20 N. J. L. 633; 118; In re Rostraver Tp. Road, 21 Satterly v. Winne, 101 N. Y. 218, 4 Pa. Super. 195; In re Bellevernon NE 185; Nelson v. Yamhill County, Road, 15 Wkly NC (Pa.) 232. (3) 41 Or. 560, 69 P 678; Jackson v. Ran- Where a highway lies in several kin, 67 Wis. 285, 30 NW 301. counties or townships, omission of one from the petition is immaterial where the parties could not have been misled thereby. Reeves v. Green, 282 Mo. 521, 222 SW 795. [h] Alternative termini.-It is not a valid objection to the proceedings that the petition describes alternative places for its location or its termini. Packard v. Androscoggin County, 80 Me. 43, 12 A 788; Sumner v. Oxford County, 37 Me. 112. [c] Descriptions of termini held insufficient. In re Mills, 21 Del. 16, 58 A 825; Little v. Baskin, 135 Ga. 851, 70 SE 796; McDonald v. Wilson, 59 Ind. 54; Sime v. Spencer, 30 Or. 340, 47 P 919; Woodruff v. Dougglas County, 17 Or. 314, 21 P 49; In re Kennedy Tp. Road, 40 Pa. Super. 70; In re Dunbar Tp. Road, 12 Pa. Super. 491; In re Montgomery Tp. Road, 15 Pa. Co. 384; In re Pocopson Road, 7 Pa. Co. 617; In re Warrington Tp. Road, 8 Del. Co. (Pa.) 79;-(1) A road petition is sufficient, if Live Oak County v. West, (Tex. Civ. A.) 206 SW 965. [d] "At or near" designated points.—(1) An application for a road stating the termini to be "at or near" certain designated points is sufficiently certain. Westport V. Bristol County, 9 Allen (Mass.) 203; Proctor v. Andover, 42 N. H. 348; State v. Northrop, 18 N. J. L. 271; Chelan County v. Navarre, 38 Wash. 684, 80 P 845. (2) But there are cases to the contrary. De Long v. Schimmel, 58 Ind. 64; Farmer V. Pauley, 50 Ind. 583. See also Pennsylvania cases infra note 93 [k] [a] A boundary line between two (6). (3) The terminus of a public towns is susceptible of exact loca-road petitioned for is sufficiently detion, and hence is competent to serve scribed as a stake marked in a ceras a monument in the description of lands proposed to be taken for a highway. Matter of Burdick, 27 Misc. 298, 58 NYS 759. Vt.-Robinson V. Winch, 66 Vt. 110, 28 A 884. Wash.-Shell v. Poulson, 23 Wash. 535, 63 P 204. 93. Il-McDonald v. Pope County Road Dist. No. 3, 292 Ill. 386, 127 NE 29; Fulton County Highway Comrs. v. Mallory, 21 Ill. A. 184. tain way near a certain house. In . Ind. Wells v. Rhodes, 114 Ind. [e] Terminus on existing high467, 16 NE 830; Adams v. Harring-way. (1) The terminus of the ton, 114 Ind. 66, 14 NE 603; Cool-posed road may be described as on man v. Fleming, 82 Ind. 117; Mc- an existing highway at a named point Donald v. Wilson, 59 Ind. 54; De thereon. State v. Emmons, 24 N. J. Long v. Schimmel, 58 Ind. 64. Me. Blaisdell V. York, 110 Me. 500, 87 A 361; Bliss v. Junkins, 106 Me. 128, 75 A 386; Andover v. Oxford County, 86 Me, 185, 29 A 982; Hayford v. Aroostook County, 78 Me. 153, 3 A 51; Acton v. York County, 77 Me. 128; Howland v. Penobscot County. 49 Me. 143; Sumner V. Oxford County, 37 Me. 112. Mass.-Com. v. Coombs, 2 Mass. 489; Pembroke v. Plymouth County, 12 Cush. 351. N. J.-State v. Green, 18 N. J. L. 179; State v. Hart, 17 N. J. L. 185; In re Highway, 16 N. J. L. 391. N. M. Michelet v. Chaves County, a [i] Reference to entire document. the termini of the road may be determined by reference to the entire document. Great Scott v. Robinson, 115 Minn. 247, 132 NW 204. (2) The caption of a petition for a road view may be considered in connection with the petition in determining whether the termini and the names of the township and county are sufficiently stated. In re Quemahoning Tp. Road, 27 Pa. Super. 150. [j] The petition may be aided by the report (1) of the viewers as respects the description of the termini. In re Bensalem Tp. Road, 11 Pa. Co. 398. (2) A motion to quash road proceedings on the ground that the petition does not show whether the terminus ad quid is east or west from the terminus a quo will not be sustained, where the terminus ad quid is rendered absolutely certain by the report of the viewers and the draft attached thereto. In re Sewickley Tp. Road, 23 Pa. Super. 170. [k] In Pennsylvania (1) prior to the passage of the act of 1909, only such reasonable certainty was repro-quired in fixing the termini of a road as would enable the viewers to locate and the supervisors to open it with substantial accuracy. In re Ottercreek Tp. Public Road, 104 Pa. 261; In re Montgomery Tp. Road, 15 Pa. Co. 384; In re Overton Tp. Road, 43 Pa. Super. 273; In re Benton Tp. Road, 41 Pa. Super. 57; In re Kennedy Tp. Road, 40 Pa. Super. 70; In re Cornplanter Tp. Road, 26 Pa. Super. 20; In re Dunbar Tp. Private Road, 12 Pa. Super. 491; In re North Codorus Tp. Road, 24 Pa. Dist. 787; In re Mt. Pleasant Road, 22 Pa. Dist. 765; In re Fayette Tp. Road, 20 Pa. Dist. 171, 37 Pa. Co. 505; In re Worcester Tp. Road, 33 Pa. Co. 418; In re Packer Tp. Public Road, 14 Pa. Dist. 11, 29 Pa. Co. 663; Anderson's App., 25 LegInt 77. (2) Mathemati L. 45; Biddle v. Dancer, 20 N. J. L. course.94. Except where required by statute,95 it is improper for the petition to fix any intermediate points. The terminal points and the general course only should be stated, leaving the route to the discretion of the commissioners or viewers.96 The width of the proposed road need not be stated unless it is expressly required by statute.97 If the petition is based on a special statute, the sufficiency of the description will depend on the require ments thereof.98 [§ 74] (4) Application Relating to Two or More Roads. In the absence of statutory authority,99 some decisions lay down the rule that several distinct highways cannot be prayed for in the same petition, unless they connect with one another, or are closely identified and designed to form a system of roads. Nor is it permissible to apply for a road to be laid out on either.one of two designated Baker V. Ashland, 50 N. H. 27: Eames v. Northumberland, 44 N. H. 67; Stevens v. Goffstown, 21 N. H. 454; Wiggin v. Exeter, 13 N. H. 304. to describe the terminal points and absence of a statutory provision to 94. Smith v. Weldon, 73 Ind. 454; Scraper V. Pipes, 59 Ind. 158; Blaisdell v. York, 110 Me. 500, 87 A 361; Andover v. Oxford County, 86 Me. 185, 29 A 982; Sumner v. Oxford County, 37 Me. 112; State v. Hager, 119 Minn. 512, 138 NW 935; Sheehan v. Bath, 80 Minn. 355, 83 NW 352. 95. Feagins v. Wallowa County, 62 Or. 186, 123 P 902; Geo. Palmer Lumber Co. v. Wallowa County, 60 Or. 342, 118 P 1013; Nelson v. Yamhill County, 41 Or. 560, 69 P 678; Ames v. Union County, 17 Or. 600, 22 P 118; Woodruff v. Douglass County, 17 Or. 314, 21 P 49. [d] Surplusage. (1) A petition for the establishment of a new highway is not rendered invalid by reason of the fact that it contains a description of the proposed highway, where it is only under the statute required to name the termini of the road. Michelet v. Chaves County, 21 N. M. 95, 152 P 1140. (2) Such viewers are not bound by the description in the position, and the same may be regarded as surplusage. Michelet v. Chaves County, 21 N. M. 95, 152 P 1140. 97. Cal.-Hill v. Ventura County, 95 Cal. 239, 30 P 385. Ind. Watson v. Crowsore, 93 Ind. 220. Iowa. State v. Wagner, 45 Iowa 482. Mo.-In re Essex Ave., 121 Mo. 98, 25 SW 891; In re Gardner, 41 Mo. A. 589. 86 Nebr. - Anderson V. Nelson, Nebr. 752, 126 NW 314. N. H.-Proctor v. Andover, 42 N. H. 348; Raymond v. Griffin, 23 N. H. 340; In re Kennett, 24 N. H. 139. N. J.-State v. Shreve, 4 N. J. L. 341. 98. See cases infra this note. [a] In Illinois, under Road Act (1883) § 54, providing for the laying out of a road "from a lot of land to a public road," the petition must contain a suitable description of the [a] Failure to state definitely.- cal precision was held not to be indispensable in all cases. In re Kennedy Tp. Road, 40 Pa. Super. 70; In re Cornplanter Tp. Road, 26 Pa. Super. 20: In re Packer Tp. Public Road, 14 Pa. Dist. 11, 29 Pa. Co. 663. (3) The required certainty was usually secured by reference to buildings, roads, and such other permanent and fixed objects as might answer the purpose. In re North Codorus Tp. Road, 24 Pa. Dist. 787. (4) There were cases in which it was held that to describe a terminus as being "at or near" some natural or other monument or object was sufficient. In re Sterrett Tp. Road, 114 Pa. 627, 7 A 765; In re Verona Borough, etc., Road, 9 Pa. Cas. 114, 12 A 456; Miller's Case, 9 Serg. & R. (Pa.) 35; In re Cornplanter Tp. Road, 26 Pa. Super. 20. (5) "In view of the present policy of the commonwealth relative to the laying out and maintenance of public highways, the legislature deemed it necessary to require greater certainty in designating the termini, so that the relation of the road to other roads should more clearly and definitely appear." In re Kennedy Tp. Road, 50 Pa. Super. 619, 625. (6) This was accomplished by the act of April 23, 1909 (P. L. p 142) which established a new method of fixing the termini, namely, by "definitely stating" in the petition for the road "the exact distance from an intersecting public road, street, or railroad, already opened." In re Roaring Brook Tp. Public Road, 72 Pa. Super. 447; In re Kennedy Tp. Road, 50 Pa. Super. 619; In re Portage Tp. Road, 50 Pa. Super. 626; In re Dunbar Tp. Road, 29 Pa. Dist. 315; In re North Codorus Tp. Road, 24 Pa. Dist. 787; In re Mt. Pleasant Road, 22 Pa. Dist. 765; In re Fayette Tp. Road, 20 Pa. Dist. 171, 37 96. Wiggin v. Exeter, 13 N. H. Pa. Co. 505; In re Salisbury Tp. Road, 304; Matter of Highways, 7 N. J. L. 19 Pa. Dist. 1120. (7) The object of 37; In re Middlesex, etc., Counties the act is to enable the state high- Public Road, 4 N. J. L. 34; In re way department properly to locate Sadsbury Tp. Roads, 147 Pa. 471, 23 the new road on its general plan and A 772; In re Catharine Tp. Road, 76 survey of the highways of the com- Pa. 189; In re Franklin Tp. Road, 54 monwealth. In re Roaring Brook Pa. Super. 293; In re German Tp. Tp. Public Road, 72 Pa. Super. 447; Road, 22 Pa. Dist. 121, 40 Pa. Co. In re Dunbar Tp. Road, 29 Pa. Dist. 164; In re Salisbury Tp. Road, 20 315; In re North Codorus Tp. Road, Pa. Dist. 735; In re Packer Tp. Pub24 Pa. Dist. 787. (8) This provision lic Road, 14 Pa. Dist. 11, 29 Pa. Co. is held to be mandatory, and, unless 663. complied with in the petition itself, [a] Illustrations.—(1) Where a the proceedings are fatally defective. petition for a road not only desigIn re Kennedy Tp. Road, 50 Pa.nates the termini of such road, but Super. 619; In re Portage Tp. Road, 50 Pa. Super. 626; In re Beaver Tp. Road, 29 Pa. Dist. 675; In re North Codorus Tp. Road, 24 Pa. Dist. 787; In re Fayette Tp. Road, 20 Pa. Dist. 171, 37 Pa. Co. 505; In re Snake Spring Road, 42 Pa. Co. 15. (9) The "intersecting road" of the act is construed to be one connecting with the road or roads in which the termini of the proposed road are located. In re Kennedy Tp. Road, 40 Pa. Super. 625: In re Portage Tp. Road, 50 Pa. Super. 626; In re Kennedy Tp. Road, 50 Pa. Super. 619; In re North Codorus Tp. Road, 24 Pa. Dist. 787. (10) Where a reference to the map submitted in the case removes any doubt as to the identity of the road, and the termini therein referred to, [b] To state the general direc- [a] In Ohio (1) where the laying the requirements of the act are sub-tion between the termini in a peti-out and construction of a new stantially complied with. In re Dun- tion for a public road does not of-county road and the improvement of bar Tp. Road, 29 Pa. Dist. 315; In fend against the rule in relation to an existing road or roads constitute re Roaring Brook Tp. Road, 72 Pa. naming intermediate points. In re one continuous road improvement, Super. 447. Packer Tp. Public Road, 14 Pa. Dist. the proceedings therefore before the 11, 29 Pa. Co. 663. county commissioners, under 64 Oh. L. p 80, and the acts amendatory [1] In Washington (1) under the old statute the petition was required Fulton County Highway Comrs. v. Mallory, 21 Ill. A. 184. [b] In Indiana, under 1 Rev. St. (1876) pp 531, 532 § 16, providing that, where the road is laid out on the line dividing the land of two individuals, each shall give half of the road, a petition for a highway which describes the highway in several places as "running on the line dividing" the lands of certain named proprietors, without averring that it ran upon or over such lands, or what part of such road passed upon each tract, is sufficient. Hedrick V. Hedrick, 55 Ind. 78. 99. See statutory provisions. [a] In Indiana (1) a single petition for free gravel roads under Acts (1895) p 145 § 2, may ask for the establishment of several disconnected roads. Monroe County v. Harrell, 147 Ind. 500, 46 NE 124. (2) It was otherwise before the passage of this act. See infra note 2. also, in describing one terminus, in [c] A rule of court may, in the |