The report firm it.51 [110] bb. Presence of Commissioners, View- ters not referred to. So the presumption is that [f] Swearing of viewers. -The report should state whether the viewers were severally sworn or affirmed. In re Herrick, etc., Tps. Road, 16 Pa. Super. 579. 48. In re Melon St., 182 Pa. 397, 38 A 482, 38 LRA 275; In re South Abington Tp. Road, 109 Pa. 118; In re Derry Tp. Public Road, 11 Pa. Super. 232. 49. See statutory provisions. [c] Variance in name.-The fact that the initial letter of the second christian name of one of the viewers is omitted in making the order of appointment, but is inserted in the signature to the report, will not warrant the setting aside of the report. In re South Abington Tp. Road, 109 Pa. 118. [d] Report by deputy.-(1) Under the act of Febr. 24, 1873, providing [a] In New Jersey, it is held that a surveyor is to be appointed that the return must show upon its for Allegheny county with authority face a compliance with all the ma- to appoint a deputy to perform his terial directions of the statute. duties, the surveyor to act as artist State v. Yauger, 29 N. J. L. 384; on road views, a report signed by State v. Lippincott, 25 N. J. L. 434; the deputy surveyor is authorized Bassett v. Clement, 17 N. J. L. 166; where viewers were appointed, the Ex p. Shough, 16 N. J. L. 264; Gris-county surveyor being named as one com v. Gilmore, 16 N. J. L. 105; State without designating his office. In re v. Van Geisen, 15 N. J. L. 339; State Killbuck Private Road, 77 Pa. 39. v. Scott, 9 N. J. L. 17. (2) Where the county engineer is [g] Change of circumstances 50. In re Manchester Tp., etc., authorized to employ a deputy, and since discontinuance of previous Road, 8 York Leg Rec (Pa.) 169. such deputy has the same power as road. The report of commissioners 51. In re West Lampeter Tp. his chief, his report in proceedings laying out a highway over a road Road, 16 Pa. Dist. 401. to establish a road, signed by his that had previously been discon- 52. In re Tionesta Tp. Road, 44 own name, is sufficient as if made tinued need not state any change of Pa. Co. 685. by the county engineer. State v. circumstances as having occurred [a] Title. Where a title written Clarke County Super. Ct., 49 Wash. after the discontinuance. Hopkinton at the head of a report of view-392, 95 P 488. (3) On a petition for v. Winship, 35 N. H. 209, 216 (where ers is not the real title of the viewers to lay out a road, the court the court said: "Upon a petition for proceeding, and the real title indi-appointed D, T, and B. The report the laying out of a highway, the cating the proper length of the view of the viewers was signed by S and statute requires no examination or appears in the body of the report, the latter two. After the report report by the commissioners, as to and in the notices and other papers had been confirmed absolutely, and any change of circumstances that attached to the report, the court will may have taken place since the dis- disregard the title at the heading, continuance of a highway upon that although such title may have been route. The question for them to ambiguous, misleading, or incorrect. examine and report upon is, whether In re Carlisle St., 55 Pa. Super. 223. the public good requires the road to be laid out; and it is only upon petitions to discontinue highways that the commissioners are required to report whether any change of circumstances has taken place"). A 53. Herron v. Carson, 26 W. Va. 62 (although it would be more formal for a committee appointed to view a proposed road to return their report in writing, yet if it was not reduced to writing and signed by each member, but, in lieu thereof, the whole report, containing all the the details required by the statute, is set out at length in the order book of the county court in the form of a recital, and an order of the court is made on such recital, it will suffice). 54. Ind. Griffin V. Pearce, 187 Ind. 287, 119 NE 8. [h] Hearing complaints.—(1) report of the commissioners need not recite that they heard complaints, as required by Rev. St. § 7799. Spurgeon v. Bartlett, 56 Mo. A. 349. (2) A recital in a report that the commissioners, after due notice to all parties in interest, heard all the testimony offered as to damages, and thereon assessed such damages, Me.-Durham's App., 117 Me. 131, sufficiently shows that the commis- 103 A 9; In re Vassalborough, 19 Me. sioners heard "complaints" as re- 338. quired by Rev. St. § 7799. Spurgeon Mass.-Com. v. Coombs, 2 Mass. v. Bartlett, 56 Mo. A. 349. Report as to: Notice of proceedings see supra 47. Campbell v. Fogg, 132 Ind. 1, 31 NE 454; Com. v. Westborough, 3 Mass. 406; Spurgeon v. Bartlett. 56 Mo. A. 349; In re Drumore Tp. Road, (Pa.) 7 A 193; In re South Abington Tp. Road, 109 Pa. 118; In re Union Tp. Road. 17 Pa. Co. 39. 489. Pa. In re Greenwood Tp. Road, 27 Wash.-State V. Clarke County an order to open issued, a petition to set aside the confirmation and admit exceptions was presented. A certificate was then filed by D, who was county engineer, to the effect that S was the duly appointed deputy engineer, and was deputed by him to survey and locate the road. It was held that it sufficiently appeared that the persons who signed the report were the persons contemplated and authorized by law to act as viewers, and that the objection that the certificate was not filed by leave of court would not avail after the time for exceptions had elapsed. Re Verona Borough Road, 9 Pa. Cas. 114, 12 A 456. [e] In Indiana, there being but two viewers provided in the statute as to establishment of free gravel roads, they must concur in any report made in order to render such report effective, and when they do concur their report is not affected by the dissent of the engineer. Griffin v. Pearce, 187 Ind. 287, 119 NE 8. 55. See statutory provisions; and cases infra this note. [a] In Illinois, where a report is signed by two only of three viewers of a road, it will be presumed that the third was present and consulting. until the contrary is shown. Galbraith v. Littiech, 73 Ill. 209; Louk v. Woods, 15 Ill. 256. [a] Where two of the viewers have signed the report (1) the fact that the third viewer does not sign it until the return day does not vitiate the report. In re Greenwood Tp. Road, 27 Pa. Super. 549. (2) In any event the fact that only two out of three viewers signed the report is [a] Пlustrations.-(1) When the not a ground for setting aside the [b] In Kansas it is sufficient that report of the viewers is silent con- proceedings three years after the a road report shows that two of the cerning an "inclosure" found on the final confirmation of the report and viewers and the surveyor attended line of a proposed road, it will be pre-after the road had been opened and in accordance with "the order of the sumed that there is none, or that the public money expended thereon to a county board fixing the time for owner has given the consent re-considerable amount. In re Union their meeting and that they proceedquired. Crossley v. O'Brien, 24 Ind. Tp. Road, 29 Pa. Super. 573. ed to review the route named in the 325, 87 Am D 329. (2) If the report [b] A report of the proceedings petition," and "caused the route of a locating committee allows no of the commissioners of two located by them to be noted by certime for the owners of the land, counties in relocating an ancient tain marks," although it does not over which a highway is to be laid. way signed by only one board of appear that the third viewer was to take off the wood, timber, and commissioners is not fatally defec-ever notified or attended, the law no HIGHWAYS [111] cc. Necessity, Utility, Convenience, and etc.. In 58. 57 a to [29 C. J.] 443 com word sary.56 It is sometimes required, however, that the report should contain statements as to the necessity or utility 58 of the proposed road, the public advantage and private inconvenience thereof,59 and where notice requiring proof of service of | tablishment of free gravel road to 16 Ky. Op. 414. its character, as whether it is a town or private ard v. Cross, 8 Kan. 248. to be filed or recorded. Ven-file written report of conclusions, as [c] return In New Jersey (1) where the § 7712 et seq, could not affect report [1879] c 128 § 6) provided that no required by Burns St. Annot. (1914) ter of a bridge company (Priv. L. [c] In Maine (1) where the charthan all the surveyors, it should ap- would not be of public utility, the be located leading from such bridge of a road is signed by less of pear that the others either met with engineer not being a viewer within two viewers that improvement way should at any time thereafter them Griscom v. Gilmore, 16 N. J. L. 105; or had notice of the meeting. the statute. State v. Van Geison, 15 N. J. L. 339; Griffin v. Pearce, 187 for Ind. 287, 119 NE 8. State a certain place, which shall be the v. Burnett, 14 N. J. L. 385. Comr., 83 Mich. 193, 57. necessary (2) A return by road surveyors must Cowing v. Ripley, 76 Mich. 650, 43 committee adjudged the way to be Cox v. Hartford Tp. Highway thereof be defrayed by such such company, unless the entire cost convenience of show that an notice of their meeting, or such no- 160, 41 NW 885; In re Upper St. but they must also adjudge, after absent surveyor had NW 648; Truax v. Sterling. 74 Mich. a common convenience and necessity, 47 NW 122; pany, it was not sufficient that the tice must appear by proof laid be-Clair Tp., etc., Road, (Pa.) 7 A 772; due notice to the bridge company, fore the court. 17 N. J. L. 166. Bassett v. Clement, by four out of a board composed of (3) A return signed 39. In re Union Tp. Road, 17 Pa. Co. whether the way would be a necessix, reciting that on the appointed statement by the viewers that "after under Acts (1832) c 42, requiring day [a] Finding held sufficient. two of them met, and, on due due sary convenience to the proof that proper notices were given, quiry, as to necessity for said road" for the laying out of the road to ad-A Shattuck's App.. 73 Me. 318. company. adjourned, consideration and diligent in-county commissioners in proceedings (2) But showing the required proof to have of the petitioners should be granted," convenience and necessity," it is sufis insufficient as they been made before less than a ma- and have, therefore, located and do ficient if they find it of "convenience "are of opinion the jority. State v. Hall, 17 N. J. L. 374. recommend for public use a certain prayer judge the road to be of "common [d] In Pennsylvania (1) some of road, was held to be a the cases hold that the road viewers' finding of the necessity of the road. 9. report should state particularly who In re Sterrett Tp. Road, 114 Pa. 627, evidence that a road laid out by the and necessity," omitting the substantial "common." of them were present at the view. 7 A 765. Cushing v. Gay, 23 Me. In re South Abington Tp. Road, 109 (3) Under St. (1821) c 118, the Pa. 118; In Road, 16 Pa. Super. 579; In re Union re Herrick, etc., Tps. basis of the report should be stated. more individuals in it, is the ap[b] The facts which formed the fit of the town, or of some one or selectmen of a town is for the beneTp. Road, 17 Pa. Co. 39; In re Clin- Dist. 541. In re ton Tp. Road, 3 Pa. Co. 170. Columbus Tp. Road, 13 Pa. proval and allowance of it by the However, a report signed by all the A. 302, 53 P 771 (2) viewers, Butts v. Geary County, 7 Kan. county commissioners on appeal, and town stating at a legal meeting or of the viewed," is a sufficient averment as highway under Gen. St. [1889] c 89 that they "had are appointed on a petition for (where viewers to who were present at the view. § 29, before the board of commisthe selectmen, therefore, need not In re Ross Tp. Road, 36 Pa. 87. state that fact in their report. Other cases hold that it need not port, and direct the highway to be statute that the surveyors shall so (3) sioners can prove the viewers' re-out a road, the requirements of the re Limerick, 18 Me. 183. In appear on the face of the report that located and opened, it must appear lay it "as may appear to them to [d] In New Jersey (1) in laying all the viewers were present at the therefrom that the road proposed is be most for the public and private view. In re Springbrook Road, 64 practicable and of public utility); convenience," and "in such a manner Pa. 451; In re Middle Creek Road, 9 Pa. 69; In re Road Fishery to McCall's Ferry, 13 Serg. road should decide upon its utility or and from Cully's committee appointed re Marsh, 2 Aik. (Vt.) 239 & R. 25; In re Ewing's Mill Road, 32 inutility). (a as to do the least injury to private to survey Pa. 282. a property," are matters of substance, (4) The names of the absent the jurors return need 59. Greenleaf Ct. Case, 4 Whart. (Pa.) show that the road described in the convenience was regarded, but says of the not be See statutory provisions. must show a compliance with them. surveyors stated. [a] 514. In Alabama the record must (2) If the return shows that public State v. Lippincott, 25 N. J. L. 434. (5) If it appears that five of order of the court was viewed and nothing about private convenience, the six viewers signed the report it is immaterial greatest advantage to the public, and that the latter was disregarded, and were present and marked whether the sixth was absent or be- with as little prejudice to individuals the return will be set aside. out by the jury "to ing present refused to sign. the the omission raises the presumption New Hanover Tp. Road, 18 Pa. 220. In re as possible, and without partiality or 56. Humboldt County more, 75 Cal. 604, 17 P 710; Camp-mark out the best route for the said (Road Laws 1903), § 20, to locate a favor;" and where the order of the Dins- court directs the jury "to view and proceedings under L. (1903) p 269 v. Lippincott, 25 N. J. L. 434. State bell v. Fogg, 132 Ind. 1. 31 NE 454; road," and they report that. "being public road from petitioner's resi[e]] In Oregon the Heagy v. Black, 90 Ind. 534; In re duly viewers, in Limerick, 18 Me. 183. [a] In Indiana (1) under Rev. St. in before "performed the duty assigned them required by law to locate the road acting," they dence to another public road, being $5016, which imposes on viewers the ability, without partiality or favor," where this fact appears from their the order to the best of their duty to ascertain whether a high- this is not a way will be of "public utility," and with the statute. as to do the least to "locate and mark" it "on the best County Comrs.' Ct., 26 Ala. 568. sufficient compliance report, it is not necessary that the damage,' ground," and under § 5017, providing Keenan v. Dallas report show that for a report by such viewers giving of road viewers must state the pub-County, 46 Or. 546, 81 P 240. [b] In Kentucky (1) a description of such location "by lic and private conveniences to by them is on the most accessible the road located the report or desirable route. metes and bounds," their report that sult from the proposed road (Soaper (1882) No. 14, providing that comKemp v. Polk they have "proceeded mark and locate said proposed public Wood v. Campbell, 14 B. Mon. 422; highway may to review. [f] In Vermont v. Kimsey, 144 Ky. 32, 137 SW 797; missioners appointed to lay out a (1) under Acts highway," with a description of the Winston v. Waggoner, 5 J. J. Marsh. road, is sufficient, and they are not required to state therein 41: Fletcher v. Fugate, 3 J. J. Marsh. make road will be of public utility, and is Abney their decision that the 631; Foreman v. Allen, 2 Bibb 581; to lay out the road conditional upon located on the best ground. payment by petitioners, especially bell v. Fogg, 132 Ind. 1, 31 NE 454. Bibb 514; Mitchell v. Baker. 7 Ky.a V. Barnett, Camp- Daveiss v. Hopkins County Ct.. 1 of laying out and building the road, to be benefited, of such sums as they 1 Bibb (2) Where the report of viewers ap- Op. 24; Peak v. Williams, 6 Ky. Op. decision by the commissioners that 557; may think proper toward the expense pointed to locate a public road is 414) (2) and state them specifically the convenience of individuals and favorable, but is silent report showing an unconditional public utility of the location, or it Peck as to the (Wood v. Campbell, 14 B. Mon. 422; the public good required the road to does not state that the location is of Foreman v. Allen, 2 Bibb 581). public utility, it will be presumed Where viewers, in their report, show nience and necessity is made condiWhitney, 6 B. Mon. 117; be laid out, is not affected by the that they deemed it of public utility. that the closing of the road would tional upon the payment of part of Heagy v. Black. 90 Ind. 534. fact that the decision as to conve. Where a remonstrance against a pro- person, they should show in their fited, but who did not sign the peti(3) be of some disadvantage to a named posed highway includes the ground report whether of damages and the inutility of the tinuance of the road would cut him the expenses by one who was beneproposed road it cannot be objected off from a public highway, or in- whose expense it was built. or not the discon- tion, although he agreed to make the that the reviewers exceeded authority in reporting the highway travel to reach a highway, or state 1041. their crease the distance he would have to cock v. Worcester, 62 Vt. 106, 18 A payments, as it is immaterial of public utility. at 86 Ind. 377. Brown v. Stewart, Han(4) Failure of engineer their opinion that he would be sub-ner as to protect a railroad will not the facts to whom board of commissioners of jected to inconvenience by the clos- be set aside if it imposes no addiupon which they based laying out a highway in such man(2) A report of commissioners county referred petition seeking es- ing of the road. Peak v. Williams, 'tional burden upon defendant town, V. sworn V. re (3) "So the error being only formal. Or- Ind. 241. cutt v. Bartland, 52 Vt. 612. cated with reasonable certainty,66 and small errors Ky-Waller v. Syck, 146 Ky. 181, 60. Christ Church v. Woodward, 26 Me. 172 (the return of the selectmen of the laying out of a way must state whether it is a town or pri- N. J.-State v. Hulick, 37 N. J. L. vate way, as in the one case the 70; State v. Woodruff, 36 N. J. L. damage is to be paid by the individ-204; State v. Lippincott, 25 N. J. L. uals benefited and in the other by 434; Ex p. Shough, 16 N. J. L. 264; the town). Griscom v. Gilmore, 16 N. J. L. 105; State v. Green, 15 Ń. J. L. 88; State v. Clark, 1 N. J. L. 261. 61. In re Herrick Tp., etc., Road, 16 Pa. Super. 579. [a] Sufficiency of statement.—(1) N. D.-Semerad V. Dunn County, A report of viewers that they have 35 N. D. 437, 440, 160 NW 855 [cit laid out a road for public use is a Cyc]. sufficient compliance with the order Pa.-In re O'Hara Tp. Road, 152 to state whether it is deemed neces- Pa. 319, 25 A 602; In re Bean's Road, sary for a public or private road. 35 Pa. 280; In re Hector Tp. Road, In re Norriton Tp., etc., Road, 4 Pa. 19 Pa. Super. 124; In re Mt. Pleas337. (2) So it is a sufficient adjudi-ant Road, 22 Pa. Dist. 765; In re cation that the road is a public one Yardley Borough, 22 Pa. Co. 179; if the viewers say they lay out the In re Union Tp. Road, 17 Pa. Co. 39; road for public use. In re App's In re Cheltenham Tp. Road, 3 Montg. Travern Road, 17 Serg. & R. (Pa.) Co. 37; In re Abington Tp. Road, 2 388. (3) A report by viewers that Montg. Co. 92; In re Windsor Tp. they had laid out and "do return for Road, 10 YorkLeg Rec 185. public use the following road" was sufficient, as showing that it was necessary for a public road. In re West Hempfield Tp. Road, 4 Lanc Bar (Pa.) 7. (4) It is not a sufficient exception to the report of a jury of review in the case of a street that it does not state whether the street is necessary for a public or a private road, where the report adopts and confirms the record of the first jury, in which the street is laid out as a public one. Greenleaf Ct. Case, 4 Whart. (Pa.) 514. 62. Pierce v. Southbury, 29 Conn. 490; In re Upper St. Clair Tp., etc., Road, (Pa.) 7 A 772, 8 Pa. Cas. 470, 11 A 625. N. B.-Boyington v. Holmes, 5 N. [a] "The means of identifying 69 516; State v. Emmons, 24 N. J. L. 45; State v. Hopping, 18 N. J. L. 423; State v. Schanck, 9 N. J. L. 107. N. Y.-In re Redmond, 195 NYS 936. Or.-Rice v. Douglas County, 93 Or. 551, 183 P 768. re Pa. In re Moyamensing Road, 4 "Their return should set out the 114 (N. [b] Alteration of report after filing. Where objectors in highway opening proceedings claimed that the description in the viewers' report [a] Illustrations.—(1) Where the was written after the report had [b] Description held insufficient. report of a committee stated that been filed, and without the viewers' A description, in a viewers' rethey found that a certain part of knowledge, and that the report was port, of the terminal and intermethe road prayed for was not required insufficient for want of a description, diate points of a proposed road, is by common convenience and neces- the burden was on the objectors to insufficient to meet the requirements sity, and that they were of opinion prove such fact in the commission- of the statute, where it is so indefithat that portion of the petitioners' court. Merom Gravel Co. V. nite that a stranger, even with the should not be granted, but that they Pearson, 33 Ind. A. 174, 69 NE 694, aid of compass and chain, could with found that a certain other portion 71 NE 54. difficulty, if at all, certainly deterought to be laid out, and that they, [c] Township.-(1) The return of mine the true location. Beck v. Bigtherefore, laid it out, it was suffi- surveyors must designate the town-gers, 66 Ark. 292, 50 SW 514. ciently found that the latter portion ship or townships in which the road 67. Carr v. Berkley, 145 Mass. 539, was required by common conveni- laid out is located. State v. Cake, 14 NE 746; Oxford Tp. v. Brands, 45 ence and necessity. Pierce v. South- 24 N. J. L. 516. (2) But it is not N. J. L. 332; State v. Schanck. 9 N. bury, 29 Conn. 490. (2) A report by necessary to show at what point J. L. 107; Clarke v. South Kingsviewers that "after due consideration the road crosses the township line. town, 18 R. I. 283, 27 A 336; Currie and diligent inquiry as to the neces- State v. Cake, 24 N. J. L. 516. v. Glasscock County, (Tex. Civ. A.) sity for said road, they are of [d] In New York, commissioners 183 SW 1193. opinion that the prayer of the peti-appointed to lay out a highway un- 68. Currie V. Glasscock County, tioners should be granted, for the der 8 84 of the Highway Law are (Tex. Civ. A.) 183 SW 1193. reasons set forth in their petition," not required to incorporate a de69. Campbell v. Fogg, 132 Ind. 1, and "have therefore located and dis- scription thereof in the certificate of 31 NE 454; Phillips V. Tucker, 3 tinctly marked upon the ground, and their decision. Matter of Wagstaff, Metc. (Ky.) 69. do recommend for public use the fol-129 App. Div. 591, 114 NYS 226. lowing described road," etc., is suffi- 65. Greer v. Lake, 186 Ind. 67, 114 cient. In re Upper St. Clair Tp., etc., NE 961; Rose v. Garrett, 91 Mo. 65, Road, 8 Pa. Cas. 470, 11 A 625. (3) 3 SW 828; In re Franklin Tp. Road, A report of viewers which states that "they laid out the road for public use," and that, "in their opinion it will fully answer as a public road, and will accommodate the traveling public," is a sufficient finding that the road is necessary. In re Versailles Tp. Road, 4 Brewst. (Pa.) 57. 63. Variance between report and petition as to: Length see infra § 134. 64. Ark. Beck v. Biggers, 66 Ark. 292, 50 SW 514. 4 Pa. Dist. 417. 70. Craig v. North, 3 Metc. (Ky.) 187: Phillips v. Tucker, 3 Metc. (Ky.) 69; Jacoby v. Neal, 8 Ky. Op. 647: State v. Woodruff, 36 N. J. L. 204: Ex D. Shough, 16 N. J. L. 264; In re 66. Conn.-Windsor V. Field, 1 O'Hara Tp. Road, 152 Pa. 319, 25 A Conn. 279. 602; In re Springfield Road, 73 Pa. Ind.-Lake Erie, etc., R. Co. V. 127; In re Lower Merion Road, 58 Pa. Shelley, 163 Ind. 36, 71 NE 151; 66; In re Bean's Road, 35 Pa. 280;_In Brown v. Stewart, 86 Ind. 377; Moss-re Derry Tp. Public Road. 11 Pa. man v. Forrest, 27 Ind. 233; Merom Super. 232; In re Salisbury Tp. Road, Gravel Co. v. Pearson, 33 Ind. A. 174, 69 NE 694, 71 NE 54. Ky.-Rochester v. Sledge, 82 Ky. 344, 6 KyL 235: Vogle v. Bridges, 22 SW 82, 15 KyL 6. Mass. Dartmouth V. Bristol County, 153 Mass. 12. 26 NE 425; Carr v. Berkley, 145 Mass. 539, 14 NE 746. Ind. Campbell v. Fogg, 132 Ind. 1, 31 NE 454; Shute v. Decker, 51 N. J.-State v. Cake, 24 N. J. L. 19 Pa. Dist. 1120; In re Union Tp. Road. 17 Pa. Co. 39; In re Lehman Tn. Road, 1 AmLJ (Pa.) 321; Ir re Cheltenham Tp. Road, 3 Montg. Co. (Pa.) 37; In re Windsor Tp. Road, 10 YorkLegRec (Pa.) 185. "The termini of a projected road are its designated and only means of identification. It is by these points it is docketed and indexed. mine their exact locality," and the courses and distances should be given,72 although courses will be controlled by monuments.73 A description of the center line of the road, accompanied by a statement showing its width, is sufficient.74 In determining the sufficiency of the description, the whole. report must be considered.75 The report may receive support by reference to the petition or order,76 or to a map or plat." Where, however, the report discloses illegality on its face, it cannot be aided by the map.78 Width of highway. Where the statute fixes a width, it need not be stated in the report or re turn,79 unless there is an express requirement to that effect.80 Grade of road. In some jurisdictions the grade of the road should be stated in the report;81 in others this is not necessary.82 83 [113] ee. Owners and Improvements. Under some statutes, the names of the owners of the lands over which the proposed road runs must be stated in the report,8 if such names are known;84 if they are unknown, a certification of that fact must be made.85 All that is required is that the viewers shall report in good faith the apparent ownership of the land; they need not adjudicate the title State v. Cake, 24 N. | proper description of the land taken of the exceptant, as the basis of their estimate of damages, is fatal to the report. In re Franklin Tp. Road, 4 Pa. Dist. 417, 16 Pa. Co. 276. or 80. Hayes v. Shackford, 3 N. H. 10; Matter of King, 42 Misc. 480, 87 NYS 236; Matter of Feeney, 20 Misc. 272, 45 NYS 830; Boyington V. Holmes, 5 N. B. 74. 81. In re Yardley Borough, 22 Pa. Co. 179; In re Union Tp. Road, 17 Pa. Co. 39. In (2) And if the viewers fail to de- in the recital. scribe the termini of the road as J. L. 516. viewed and located it is fatal. 76. In re Redmond, 105 NYS 936; They are the initials which describe In re Hilltown, etc., Road, 2 Del. Co. the proceeding, and limit the author- (Pa.) 480. But see Lake Erie, etc., ity delegated by the court in its R. Co. v. Shelley, (Ind. A.) 67 NE order to the viewers. To go beyond 564 (where the record did not show them is to exceed the authority. that the order was attached to When once the viewers cut loose made a part of the report, and it did from the order and go outside of it, not appear as a part of the report). the whole identity of the proceeding 77. Mowbray v. Allen, 58 N. J. L. is lost." In re Lower Merion Road, 315, 33 A 199; Carpenter v. Brown, 58 Pa. 66, 67 [quot In re Crescent 53 N. J. L. 181, 20 A 738; In re SeTp. Road, 18 Pa. Super. 160, 164]. wickley Tp. Road, 23 Pa. Super. 170; [a] In Pennsylvania (1) the act Clarke v. South Kingstown, 18 R. I. of June 13, 1836, (Purdon Dig. p 1496 283, 27 A 336. See In re Hector Tp.pl 3) does not require that the viewRoad, 19 Pa. Super. 124 (where there ers appointed to lay out a public was nothing in the plat or draft to road shall state in their report the aid the report). But see Greer v. elevation of the proposed road. Lake, 186 Ind. 67, 72, 114 NE 961 re Drumore Tp. Road, 7 A 193. ("For the purpose of determining "In the absence of the record showwhether or not there was a declara-ing to the contrary, it will be pretion of an intention to appropriate sumed that, 'whenever practicable,' any part of his land, a party inter- the road was laid at a proper grade." ested would be required only to ex- In re Drumore Tp. Road, 7 A 193; amine the report of the viewers and In re Drumore Tp. Road, 3 LancL a notation endorsed on the profile Rev 222. (3) But under the act of prepared by the engineer would be March 2. 1854, providing that no no notice to him of such intention road shall be laid thereunder unless even though it were in proper form it can be graded at an elevation of and otherwise sufficient"). not made than five degrees from the plane of the horizon, or be easily reduced to that elevation, it was error to confirm a report of viewers where it did not appear in the report or draft, or any part of the record, that the road could be graded as required. In re Cussewago Tp. Road, 3 Brewst. (Pa.) 190. [a] "At or near." (1) A description of a terminus as being on a certain road near a certain house or building has been held to be sufficient. Blakeslee v. Tyler, 55 Conn. 387, 11 A 291; Vogle v. Bridges, 22 SW 82, 15 KyL 6. (2) But the contrary has also been held. De Long V. Schimmel, 58 Ind. 64; State v. Woodruff, 36 N. J. L. 204; Ex p. Shough, 16 N. J. L. 264; Griscom v. Gilmore, 16 N. J. L. 105; In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Union Tp. Road, 17 Pa. Co. 39. (3) "To designate a terminus as 'near' a division line or building or gate or any other point or place is not sufficient." In re Union Tp. Road, 17 Pa. Co. 39, 41. (4) "Neither is it sufficient to describe termini as between two given points or places." In re Union Tp. Road, 17 Pa. Co. 39, 41. 71. Phillips V. Tucker, 3 Metc. (Ky.) 69. [a] Reversing courses- Where the only mode of determining the beginning point is by reversing the courses as run by the surveyor, the report is insufficient. Phillips v. Tucker, 3 Metc. (Ky.) 69. "The draft annexed to the report is properly a part of it, and is to be considered in determining as to the sufficiency of the designation of the termini.” In re Hector Tp. Road, 19 Pa. Super. 120, 123. [a] Omission of width.-That the width of a proposed highway is not indicated in the report of the coun- 82. Tench v. Abshire, 90 Va. 768, cil committee is immaterial, where 19 SE 779. the width is shown in a plat accom- 83. Cal.-Sacramento County V. panying the report. Clarke v. South Glann, 14 Cal. A. 780, 113 P 360. Kingstown, 18 R. I. 283, 27 A 336. Ky. Morris v. Salle, 19 SW 527, 78. Mowbray v. Allen, 58 N. J.14 KyL 117. Mass.-Com. v. Great Barrington, Where the 6 Mass. 492; Com. V. Coombs, 2 Mass. 489. 72. Tingle V. Tingle, 12 Bush L. 315, 33 A 199. (Ky.) 160; Craig v. North, 3 Metc. (Ky.) 187; Phillips V. Tucker, 3 Metc. (Ky.) 69; Wood v. Campbell, 14 B. Mon. (Ky.) 422; Jacoby v. Neal, 8 Ky. Op. 647; State v. Clark, 1 N. J. L. 261; In re Race St., 8 Pa. Co. 95. 73. Woodman v. Somerset County, 25 Me. 300; In re Knowles, 22 N. H. 361. [a] Illustration. 79. Ind. Campbell v. Fogg, 132 Kan.-Willis v. Sproule, 13 Kan. 257. Ky-Story v. Little, 135 Ky. 115, 121 SW 1023. N. J.-Mt. Olive Tp. v. Hunt, 51 N. J. L. 274, 17 A 291; State v. Oliver, 24 N. J. L. 129. Pa. In re Union Tp. Road, 17 Pa. Co. 39; In re Kingston Tp. Road, 8 Kulp 489. But see Detroit V. Somerset County, 52 Me. 210 (holding that proceedings of county commissioners in laying out a highway will not be quashed because the owners of the land taken are not named). [a] Tenants. Where the report of road viewers gives the names of all the owners of the land over which the proposed road runs, the fact that the name of a tenant under the control of an owner, or cropping on shares, does not appear, will not vitiate the proceeding. Talliaferro v. Roach, 12 SW 1039, 11 KyL 665. 74. Tingle V. Tingle, 12 Bush (Ky.) 160; Peo. v. Redhook Highway Comrs., 13 Wend. (N. Y.) 310; Rice V. Douglas County, 93 Or. 551, 183 P 768. See Hopkins v. Crombie. 4 N. H. 520, 524 (where it is said: "It is believed to be the usual custom in making a record of a highway, to describe Va.-Tench v. Abshire, 90 Va. 768, a line beginning at a particular 19 SE 779. monument, and running from that Wis.-State v. Hogue, 71 Wis. 384, through the whole route to another 36 NW 860. monument, and then to state the [a] In Pennsylvania (1) the viewwidth of the way and to declare the ers cannot fix the width of the road. described line to be the centre of the Maus v. Mahoning Tp., 24 Pa. Super. way"). 624; In re Stowe Tp. Road, 20 Pa. Super. 404; In re Franklin Tp. Road, 4 Pa. Dist. 417. And see In re Aston Tp. Road, 4 Yeates 372 (holding that the breadth of a proposed road returned by the viewers is mere sur-they lived elsewhere, did not invaliplusage). (2) The viewers may suggest, by way of recommendation, the width of the road, but it is the duty of the court of quarter sessions to fix it. In re Bloomsburg, etc., Tps. Road, 11 Pa. Dist. 93. (3) But the omission of the viewers to report the width of the land proposed to be taken for the road, or some other '489. [a] The thread of the road is all that is required to be shown by L. (1917) р 588. Rice V. Douglas County, 93 Or. 551, 183 P 768. 75. Todemier v. Aspinwall, 43 Ill. 401; State v. Cake. 24 N. J. L. 516. [a] Recital. Where the return of the surveyors commenced with a recital, it was held that for the purpose of designating the general locality of the road, the recital might be considered as part of the return, especially where the return contained words of reference to the description [b] Mistake as to residence.-The fact that the return of the surveyors described certain persons to whom awards of damages were made as residents of one town, when in fact date the proceedings of the surveyors. Stokes v. Parker, 53 N. J. L. 183, 20 A 1074. 84. Com. v. Great Barrington, 6 Mass. 492; Com. v. Coombs, 2 Mass. 489. 85. Com. v. Great Barrington, 6 Mass. 492; Com. v. Coombs, 2 Mass. 86. 94 provements in the draft or in the report, the pre- Sacramento County v. Glann, 152 Pa. 319, 25 A 602; In re Sterrett | sess the entire costs and expenses, 14 Cal. A. 780, 113 P 360. Tp. Road, 114 Pa. 627, 7 A 765 (ob-including damages; they should be L.jection too late after confirmation assessed by one set of viewers and of report); In re Race St., 8 Pa. Co. in_one_report. In re Pittsburgh St., 95; In re Bellevernon Borough Road, 4 Pa. Dist. 681, 16 Pa. Co. 478. 15 WklyNC (Pa.) 232. [c] Amount awarded, and par ticular assessment to each owner.(1) A report of reviewers finding that damages will be suffered by a certain person but which omits to find the amount of such damages is defective. In re Kingston Tp. Road, 5 Kulp (Pa.) 43. (2) The return of the surveyors should specify the names of all whose lands are taken, and the amount assessed to each. An assessment to "A, B, and others" is bad. Mt. Olive Tp. v. Hunt, 51 N. J. L. 274, 17 A 291; State v. Oliver, 24 N. J. L. 129. 87. State v. Hulick, 37 N. J. 70; State v. Lippincott, 25 N. J. L. 434; State v. Smith, 21 N. J. L. 91; State v. Hopping, 18 N. J. L. 423; In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Road from Buttonwood Lane to Green St., 13 Serg. & R. (Pa.) 445; In re Bristol Tp. Road, 49 Pa. Super. 549; In re Herrick, etc., Tps. Road, 16 Pa. Super. 579; In re Upper Darby Tp. Road, 15 Pa. Super. 652, 8 Del. Co. 158; In re Mount Joy Tp. Road, 10 Pa. Dist. 490; In re Union Tp. Road, 17 Pa. Co. 39; In re Middletown Tp. Road, 3 Del. Co. (Pa.) 208; In re Kidder Tp. Road, 1 Kulp (Pa.) 10; In re Bellevernon Borough Road, 15 Wkly NC (Pa.) 232; In re Lower Chanceford Tp. Road, 8 York Leg Rec (Pa.) 165; In re Lower Chanceford Tp. Road, 8 York Leg Rec (Pa.) 8. [a] The words "Improved Land" written across each of the subdivisions of the land through which the road runs are not a sufficient compliance with the act of June 13, 1836, requiring the improvements to be briefly noted. In re Upper Darby Tp. Road, 15 Pa. Super. 652, 8 Del. Co. 158. 97. In re Mount Joy Tp. Road, 10 288. Mass.-Com. v. Coombs, 2 Mass. 489. N. H.-In re Patten, 16 N. H. 277. [a] In New Jersey.-(1) In laying out a highway over land of anyone not an applicant therefor, the surveyors must certify in their return as to the damages sustained by such owner. Kearsley v. Gibbs, 44 [b] In Virginia, the provisions N. J. L. 169; Washington v. Fisher, of the statute making it the duty 43 N. J. L. 377; State v. Runyon, 24 of a road commissioner, when di- N. J. L. 256; State v. Garretson, 23 rected to view the route of a pro-N. J. L. 388; State v. Cooper, 23 N. posed highway, to report specially J. L. 381. (2) Unless the surveyors whether any yard, garden, orchard, were misled by false statements of or any part thereof will be taken if such owner himself. State v. Benthe road is established are directory nett, 25 N. J. L. 329. (3) It is no exonly. Jeter v. Board, 27 Gratt. (68 cuse that the surveyors were igVa.) 910. norant of the law. State v. Everitt, 88. State v. Hulick, 37 N. J. L. 70;23 N. J. L. 378. State v. Smith, 21 N. J. L. 91; State v. Hopping, 18 N. J. L. 423. 89. In re Leet Tp. Road, 159 Pa. 72. 28 A 238. 90. In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Bristol Tp. Road, 49 Pa, Super. 549. 91. In re Leet Tp. Road, 159 Pa. 72, 28 A 238 92. In re Leet Tp. Road, 159 72, 28 A 238. 93. In re Road from Cully's Fishery to McCall's Ferry, 13 Serg. & R. (Pa.) 25; In re Schuylkill Falls' Road, 2 Binn. (Pa.) 250; In re Quemahoning Tp. Road, 27 Pa. Super. 150; In re East Earl Road, 10 LancL Rev (Pa.) 340. [d] Award of lump sum.-Under Pol. Code § 2686, providing that the report of the viewers to the supervisors shall contain "the estimate of the damage to the owner," it was held that as the report was not binding on the owner as to damages, it was sufficient to report a lump sum as the proper amount to be paid. Monterey County v. Cushing, 83 Cal. 507, 23 P 700. [e] Land damaged.—Although the report of the board awarding damages on laying out a highway should specify all the land which the supervisors consider damaged, it is not necessary to specify all adjacent land which they consider as not being damaged, or with regard to which the benefits may equal the damages. Olson v. Curran, 137 Wis. 380, 119 NW 101. [f] Proportion payable by different townships, etc.-(1) Where a [b] In Pennsylvania (1) under road is laid out in two or more townthe act of June 13, 1836 (general ships, the surveyors must certify the road law), the viewers were not re-proportion of assessment to be paid quired to report damages for the by the several townships in which land taken. In re Franklin Tp. Road, the road is laid out. State v. Can4 Pa. Dist. 417, 16 Pa. Co. 276. (2) non, 33 N. J. L. 218; State v. GarBut the first section of the act of retson, 23 N. J. L. 388. (2) So where May 14, 1874 changes the law in this a road is laid out partly in a townrespect, and provides the way for as- ship and partly in a borough, the Fa.sessing them by the viewers. In viewers must make a separate asre Warriorsmark Tp. Road, 126 Pa. sessment of the damages sustained 305, 17 A 595; In re New Washing- by the respective owners, showin ton Road, 23 Pa. 485; In re Franklin the amounts to be paid to each by Tp. Road, 4 Pa. Dist. 417, 16 Pa. Co. the borough, if any, and the amounts 276; In re Union Tp. Road, 17 Pa. to be paid to each by the township. Co. 39; In re Palmer Tp. Road, 11 In re Greenwood Tp. Road, 23 Pa. Wkly NC 429 (holding that the re- Co. 85. (3) But where the return port of viewers must either assess directs the different amounts awarded 94. In re O'Hara Tp. Road, 152 damages to the owners and Occu- for damages to the landowners to be Pa. 319, 25 A 602; In re Hempfield pants of land taken, or return a re-paid by the respective townships Tp. Road, 122 Pa. 439, 16 A 738; In lease of damages). And see In re through which the road runs, it need re Springdale Tp. Road, 91 Pa. 260; Kingston Tp. Road, 8 Kulp 489 not state the aggregate sum to be In re New Hanover Tp. Road, 18 Pa. (holding that, where road viewers paid by each township. Oxford Tp. 220; Pott's App., 15 Pa. 414; In relay a road through land of an owner v. Brands. 45 N. J. L. 332. Towamencin Road, 10 Pa. 195; In re whose name does not appear on the Description of owners entitled to North Franklin Tp. Road, 8 Pa. draft, to whom no damages are damages see supra § 113. Super. 358, 43 WklyNC 102; In re awarded, and from whom no reBellevernon Borough Road, 15 Wkly lease is reported, on the reasonably NC (Pa.) 232. See also infra § 125. prompt application of such owner, 95. In re O'Hara Tp. Road, 152 and proof that he had no actual noPa. 319, 25 A 602; In re Bellevernon tice of the proceedings, confirmation 2. See statutory provisions. Borough Road, 15 Wkly NC (Pa.) 232. of the report will be stricken off). [a] In Pennsylvania, under the 96. In re Leet Tp. Road, 159 Pa. (3) Under the act of May 16, 1891, act of Febr. 24, 1845, regulating the 72, 28 A 238; In re O'Hara Tp. Road, P. L. p 75, viewers have power to as- 'laying out of roads in certain coun Right to damages and proceedings to assess them see infra §§ 355-370. 1. In re O'Hara Tp. Road, 87 Pa. 356. |