Imágenes de páginas
PDF
EPUB

matter.68
63
The writings or parol testimony offered
must be relevant and purport to be evidence of
the matters intended to be proved.64

71

fect,69 and of giving any independent weight to evidence which is of no worth unless accompanied by other evidence.70 Thus surveys, reports, plats, [§ 197] (3) Weight and Sufficiency. In general and other preliminary proceedings, or proof that the rules and standards prevailing in other civil a road had been used as a public way,72 or accepted actions 65 are applicable in passing on the weight by the authorities,73 are insufficient to establish and sufficiency of evidence relating to the existence the existence of the highway without proof of an of a highway." 66 Evidence that a road has been actual opening to public use. But plats and surused and traveled by the public, and kept in re- veys and field notes, while not evidence of the expair by the proper authorities, is sufficient prima istence of a highway, are evidence of its location," facie to establish the existence of such road as a although not conclusive evidence,75 and will control, public highway;67 and the mere absence of record in the absence of other evidence of its actual locaproof is insufficient to establish the fact that the tion. In considering evidence as to the limits of place in question is not a public highway.s In a highway, evidence which would be regarded as considering evidence as to the legal or actual ex- slight and unsatisfactory if applied to matters of istence and limits of a highway, care should be recent occurrence may be sufficient when relating taken against giving any one item conclusive ef- to matters which took place at a remote period." as a part of the record of laying out. order that it may be recorded, is not finding of necessity of highway see Hall v. Manchester, 39 N. H. 295. the laying out of a highway; and supra § 35. [c] The neglect to have filed and the certificate of such survey is inrecorded the proper records, as re-admissible to prove that the highquired by law, does not raise a pre- way described in it had been laid sumption that the authorities pro- out by the commissioners. Parker ceeded contrary to statute in estab- v. Peo., 22 Mich. 93. lishing the road, or render inadmis- [e] The condition of a road is not sible evidence that the necessary evidence as to whether or not it is acts were in fact done. Carron v. a highway. Zimmerman v. State, 4 Clark, 14 Mont. 301, 36 P 178. Ind. A. 583, 31 NE 550. Evidence of user in aid of defective record see supra § 151.

63. Penick v. Morgan County, 131 Ga. 385, 62 SE 300 (where testimony to show that the road referred to in the minutes was the road testified about was held to have been properly received).

64. Cal.-Shepherd v. Turner, 129 Cal. 530, 62 P 106.

309.

Conn.-Wooster v. Butler, 13 Conn. Ga.-Penick v. Morgan County, 131 Ga. 385, 62 SE 300.

Ind.-Zimmerman v. State, 4 Ind. A. 583, 31 NE 550.

Mass.-Lincoln v. Com., 164 Mass. 1, 41 NE 112.

[f] Verdicts and judgments be-
tween other parties are not admis-
sible to show the establishment of
a highway, except in the case of
highways claimed by prescription
and user. Fowler v. Savage, 3 Conn.
90.

65. See Evidence §§ 1730-1806.
66. See cases infra this note.
[a] Report controls recitals of
record.-Where the record of the
county board recites that two of the
viewers acted and made a report, but
the report itself shows otherwise,
the report is the better evidence and
must prevail. State v. Horn, 34
Kan. 556, 9 P 208.

67. Greenwood County v. Scott, 9 Kan. A. 871, 61 P 967.

68. State v. Robinson, 12 Wash. 491, 41 P 884.

69. Beach V. Meriden, 46 Conn. 502; Butchers' Slaughtering, etc., Assoc. v. Boston, 139 Mass. 290, 30 NE 94; Soule v. State, 19 Wis. 593.

[a] A plan filed by a town in compliance with a statutory requirement, showing a number of roads, some of which were admitted to be county roads, and showing also brooks and other things not called for by the act, is not conclusive evidence that a way delineated thereon is a county road. Butchers' Slaughtering, etc., Assoc. v. Boston, 139 Mass. 290, 30 NE 94.

[b] Order to remove fence.-An order of the town supervisor requiring an occupant of land to remove a fence on the ground that it encroaches upon a public highway is not conclusive evidence of the legal existence of such highway. Soule v. State, 19 Wis. 593.

70. Brantly v. Huff, 62 Ga. 532. 71. O'Connell v. Chicago Terminal Transfer R. Co., 184 Ill. 308, 56 NE 355; Ottawa v. Yentzer, 160 Ill. 509, 43 NE 601; Naylor v. Beeks, 1 Or. 216; Dee's v. Thompson, (Tex. Civ. A.) 166 SW 56.

[b] A written petition for a highMich. Parker v. Peo., 22 Mich. 93. way is more conclusive, as evidence N. H.-State v. Alstead, 18 N. H. of the route applied for, than the 59. subsequent declarations of the ap[a] Identification of the records plicants. State v. Stites, 13 N. J. L. and the entries therein (1) by show-172. ing when the book or record came [c] Proof of peaceable possession into existence, in whose custody it under claim of title is prima facie is, and when the entries therein were evidence that the signers of the peti- [a] The survey and platting of a made is a condition precedent to its tion were freeholders. Austin v. Al- road by the county surveyor under admissibility. Shepherd v. Turner, len, 6 Wis. 134. the order of the highway commis129 Cal. 530, 62 P 106; Penick V. [d] The testimony of the view-sioners for that purpose, not being a Morgan County, 131 Ga. 385, 62 SE ers as to the boundary of a highway proceeding to establish a road, but 300. (2) Facts showing a sufficient is not, as a matter of law, entitled only to ascertain the courses and identification see Hall v. Manchester, to greater weight than the testimony distances of one claimed to be al40 N. H. 410; Wright v. Fanning, of other witnesses who had knowl-ready established, does not establish (Tex. Civ. A.) 86 SW 786. edge of the facts. Cloud County v. Morgan, 7 Kan. 213, 52 P 896.

[b] Testimony of surveyor.-The testimony of one that he has acted as a road surveyor, and in execution of his warrant caused a road to be repaired, is not evidence of such road having been established as a public highway, when there is no evidence that it was within his district, and his warrant has not been produced or accounted for. State v. Alstead, 18 N. H. 59.

[e] Evidence sufficient to go to jury.-Reed v. Harlan, 2 Oh. Dec. (Reprint) 553, 3 WestLMonth 632.

such road as a public highway, but leaves the proof of its existence precisely as it was before. Gentleman v. Soule, 32 Ill. 271, 83 AmD 264.

72. Dahlstrom V. Anderson, 56 Wash. 575, 106 P 127.

73. Tazewell County v. Norfolk, etc., R. Co., 119 Va. 763, 91 SE 124.

[a] Exhibits showing that a road was a public road in 1858 merely show the acceptance by the county authorities and do not show its establishment as a public road under and in pursuance of legislative acts. Tazewell County v. Norfolk, etc., R. Co., 119 Va. 763, 91 SE 124.

[f] Evidence sufficient to prove establishment of highway.-Peo. v. Power, 38 Cal. A. 181, 175 P 803; Hughes v. Veal, 84 Kan. 534, 114 P 1081; Wright v. Doniphan, 169 Mo. 601, 70 SW 146; Wecker v. Dommer, 97 Nebr. 728, 151 NW 157; State v. [c] Order refusing to vacate Morse, 50 N. H. 9; Shaefer v. Hill highway. In a suit to abate an ob-ker, 140 App. Div. 173, 124 NYS 1014 struction on an alleged highway, a [aff 206_N. Y. 708 mem, 99 NE 1117 proceeding to vacate a highway, and mem]; Tincher v. State, 19 Tex. 156. an order of the supervisors there[g] Evidence sufficient to supon, is inadmissible to show the ex- port finding of no highway-Arndt istence of such highway, since the v. Thomas, 90 Minn. 355, 96 NW refusal to vacate a highway does 1125. not tend to make the premises a [h] Evidence insufficient to prove highway. Shepherd v. Turner, 129 establishment of highway. Mag-216. Cal. 530, 62 P 106. nolia v. Kays, 205 Ill. A. 152; Neff v. Smith, 91 Iowa 87, 58 NW 1072; Bellevue v. Hunter, 105 Minn. 343, 117 NW 445; Copeland v. Pyrtle, (Mo. A.) 179 SW 992; Bare v. Williams, 101 Va. 800, 45 SE 331.

[d] To prove "laying out" or existence of highway "laid out."The survey of a road, under Comp. L. 991 subd 3, requiring commissioners to ascertain, describe, and enter of record such roads as become highways by public use for the purpose of ascertaining and describing it as one which had been used as a highway for twenty years, in

[i] The sufficiency and effect of the records are for the determination of the court alone. State v. Prine, 25 Iowa 231.

74. Blackman v. Riley, 138 N. Y. 318, 34 NE 214 [aff 63 Hun 521, 18 NYS 476]; Naylor v. Beeks, 1 Or.

75. Hiner v. Peo.. 34 Ill. 297: Blackman v. Riley, 138 N. Y. 318, 34 NE 214 [aff 63 Hun 521, 18 NYS 476].

76. Webster County V. Wasem Plaster Co., 188 Iowa 1158, 174 NW 583; Pine v. Reynolds, 187 Iowa 379, 174 NW 257, 6 ALR 1206.

77. Blackman v. Riley, 138 N. Y. 318, 34 NE 214 [aff 63 Hun 521, 18

Sumciency of evidence to support NYS 476].

HIGHWAYS

Practical construction of the location for many years should be given great weight where otherwise the proper location would be in great doubt.78 Where a highway has been for many years located,

to

[29 C. J.] 503 graded, and established with due care and in good faith, it may not be impeached without clear and convincing proof of error.79

III. ALTERATION, VACATION, AND ABANDONMENT
[BY EDWARD C. ELLSBREE]

[198] A.
What Constitutes Alteration.
Alteration 80—1. In General-a.
highway, as the expression is used, generally refers
An alteration of a
a change in the course thereof,81 and therefore
necessarily involves to some extent the establish-
ment of a new highway, and the vacation of the
part of the old highway for which the substitution
is made.82 Consequently the fact that the petition,
praying for an alteration, asks also for a dis-
continuance of the part of the highway made un-
necessary thereby does not change the character of
the proceeding as one for an alteration; 83 and under
78. Merrill v. Hutchins, 180 Iowa | 100 Mass. 159.
1276, 164 NW 184; Taeger v. Riepe,
90 Iowa 484, 57 NW 1125.

in

79.

Glinski v. Kowalski, 37 N. D. 283, 163 NW 1069.

80. At railroad crossing see Railroads [33 Cyc 266].

Of city streets see Municipal Corporations [28 Cyc 838].

81. Del.- Alston's Pet., 17 Del. 359, 40 A 938.

3

Mass.-Gloucester v. Essex County,
Metc. 375.

N. Y.-Buchholz v. New York, etc., R. Co., 71 App. Div. 452, 75 NYS 824 [ff 177 N. Y. 550 mem, 69 NE 1121 mem].

O-Heiple v. Clackamas County, 20 Or. 147, 25 P 291. Vt.-Hutchinson v. Chester, 33 Vt.

410.

Wis.-State v. Burgeson, 108 Wis. 174, 84 NW 241; Harrison v. Milwaukee County, 51 Wis. 645, 8 NW 731. [a] “Alter" (1) means to change or modify; to change in form without destroying identity. Clackamas County, 20 Or. 147, 25 P Heiple v. 291. (2) To alter a highway means to improve its direction so that it may better Greene v. Goodwin Sand, etc., Co., serve public interests. 72 Misc. 192, 129 NYS 709; Peo. v. Judges Cortland County, 24 Wend. 491.

an

[b] A proceeding to highway improperly laid out is propchange a erly entitled "a proceeding to alter existing highway." Fenn, 151 App. Div. 797, 136 NYS 262. Matter of [c] A change making angle instead of an obtuse angle in & right an existing highway is an "alteration" thereof. Peo. v. Jones, 63 N. Y. 306.

171

V.

82. Ill-Brown v. Roberts, 23 Ill. A. 461 [aff 123 Ill. 631, 15 NE 30]. Ind. Kelley v. Ind. 155, Augsperger, 85 NE 1004; Bowers Snyder, 88 Ind. 302. La. Jackson Parish Police Jury v. Tremont, etc., R. Co., 136 La. 784, 67 S 829.

Mass.-Bigelow v. Worcester, 169 Mass. 390, 48 NE 1. N. Y.-Peo. v. Jones, 63 N. Y. 306; Buchholz v. New York, etc., R. Co., 71 App. Div. 452, 75 NYS 824 [aff 177 N. Y. 550 mem]. mem, 69 NE 1121 Pa-Millcreek Tp. v. Reed, 29 Pa. 195; In re Loyalsock Tp. Road, 26 Pa. Super. 219; West Penn. Road, 23 Pa. Co. 477.

W. Va.-Conrad v. Lewis County, 10 W. Va. 784.

[a] A technical alteration is the substitution of one way for another. Bigelow v. Worcester, 169 Mass. 390, 48 NE 1; Johnson v. Wyman, 9 Gray (Mass.) 186.

Operation and effect of alteration see infra 224.

83. Hobart v. Plymouth County,

84. 85.

a notice of the alteration of a road, a part of the old road rendered unnecessary thereby may be discontinued.84 An alteration is, however, a separate form of improvement,85 which is to be distinguished both from the vacation or discontinuance of an expetition for an alteration in an existing highway isting highway,se and from the establishment of a new highway;87 and it is not permissible upon a to establish a new highway.88 by the language of the statute,89 the term "alteraBut unless restricted tion" is broad enough to include a widening or narrowing, and the straightening of a crooked high

90

See infra § 224.
[rev 2 Thomps. & C. 360].
Peo. v. Jones, 63 N. Y. 306

86.

142 SW 229; Thompson v. Crabb, 6 J.
Waller v. Syck, 146 Ky. 181,
J. Marsh. (Ky.) 222; Lincoln v. War-
ren, 150 Mass. 309, 23 NE 45; Saeger
v. Com., 258 Pa. 239, 101 A 999.
tinuance of a public highway.
"There is a palpable distinction be-
tween the alteration and the discon-
leading to
the one
the court house, ware house, &c. al-
case, the road is kept up,
In
though it may be thrown by altera-
the principal points, to
on which it was at first located; in
tions, on different ground from that
the other, it is abolished altogether,
stopped up with impunity."
hands are exonerated from keep-
son v. Crabb, 6 J. J. Marsh. (Ky.)
ing it in repair, and it may
222
be
Thomp-
[quot Waller v. Syck, 146 Ky.
181, 185, 142 SW 229].
§§ 226-249.
Vacation of highway
Ill. A. 461 [aff 123 Ill. 631, 15 NE 30].
see infra
87. Ill. Brown V. Roberts,
83 A 455; Raymond v. Cumberland
23
Me.-Ford v. Erskine, 109 Me. 164,
County, 63 Me. 112.

N. J. L. 478, 24 A 367.
N. J.-Green v. Loudenslager, 54

an

Where

Tp.

Mass.-Main v. Faunce, 98 NE 621;
Gloucester v. Essex County, 3 Metc.
Goodwin v. Marblehead, 1 Allen 37;
v. Cambridge, 7 Mass. 158.
Bliss v. Deerfield, 13 Pick. 102; Com.
375; Sprague v. Waite, 17 Pick. 309;

H. 307.
N. H.-State v. Canterbury, 40 N.

Cement Co., 65 N. J. L. 541, 47 A 587.
N. J.-Pursell v. Edison Portland
Or. Vedder v. Marion County, 28
Or. 77, 36 P 535, 41 P 3.
174, 84 NW 241.
County Ct., 80 W. Va. 626, 92 SE 781.
W. Va. Harner v. Monongalia
Wis.--State v. Burgeson, 108 Wis.

[ocr errors][merged small][merged small]

A 938; State v. Vanderveer, 48 N. J. L. 80, 271: 89. Alston's Pet., 17 Del. 359, 40 diction to change public roads, the [a] In Delaware in Rev. c 608 4, providing that the court Code of general sessions shall have jurisword "change" is restricted by § 5, which provides no authority to widen a road, under petition for changing the course of a procedure 359, 40 A 938. a public road, to mean "to change the course of." such section. Hence the court has Alston's Pet., 17 Del. resident associate judge within each current jurisdiction was given to the (2) "In 1911 conbridges and vacate the same." county to lay out public roads and to widen, change or Del. 556, 557, 109 A 573. In re Day, 30

N. Y.-Peo. v. Jones, 63 N. Y. 306. Or. Vedder v. Marion County, 28 Or. 77, 36 P 535, 41 P 3. Roads, 129 Pa. 244, 18 A 123. Pa. In re Londonderry application is filed to vacate a road,cester County R. Comrs., 171 Mass. [a] Illustrations.—(1) 90. Mass.-Boston, etc., R. Co. v. Middlesex County, 177 Mass. 511, 59 plication is made to establish a narand at the an NE 115; New England R. Co. v. Worrower road at the same place, this Beverly, 103 Mass. 136. same time another ap-135, 50 NE 549; Lincoln v. Warren, is in effect an application to alter Com. v. Cambridge, 7 Mass. 158 (the 150 Mass. 309, 23 NE 45; Wilson v. the court by a single application for or altering it, but extending the puba road and should be presented to widening of a road is not turning But see alteration. slager, 54 N. J. L. 478, 24 A 367. ing. by which they also become part Green v. Louden-lic easement to other lands adjoin(2) But where application was made of the highway). twenty-eight chains in length and N. J. Eq. 299. for the establishment of a new road for the vacation of another fortyN. J.-Holmes v. Jersey City, 12 from their point of intersection at one chains in length, they diverging & C. 140. N. Y.-Peo. v. McNeil, 2 Thomps. grees, and intersecting another road at points thirty chains apart, it was an angle of more than forty-five deheld that, in view of the lengths of the two roads and their marked diered as intended to supersede or ren- construed to mean a change of locavergence, der unnecessary the other, and that, tion only, and not a change of width. one could not be consid-"change" in the [a] In Pennsylvania (1) the word therefore, the petition must be con- In re Liberty Alley, 8 Pa. 381; In act of 1836 was as the commencement of two pro- (2) But the act of 1850 may be residered as not for an alteration, but the other for the vacation of a road. ceedings, the one for the location and garded as an amendment of the act re Church Road, 5 Watts & S. 200. Vedder v. Marion County, 28 Or. 77, "change" 36 P 535, 41 P 3. of 1836 § 18 whereby Establishment of new highway see the used term was enlarged beyond the construcin that supra §§ 2-197. section tion previously given to it, so as to 88. Ind.-Lowe Ind. 247, 4 NE 580. include a widening, as well as an alteration of location of parts of the Me. In re Livermore, 11 Me. 275.supplied. road and the vacation of the parts In re Loyalsock Tp. Road,

[blocks in formation]

94

way.91 But the mere leveling,92 change of grade,93 or repair, of an existing highway, is not an alteration thereof.

96

7

5

8

statute, and courts and public officers have no power except such as the statute confers.97 This power of alteration may be exercised directly by [199] b. Power to Alter-(1) In General. the legislature itself,98 or it may be delegated to The power existing in the legislature to establish subordinate government agencies, such as the state highways includes the lesser power to alter them, highway commission,99 county commissioners 1 or subject only to the duty of making compensation supervisors, road or highway commissioners,3 towns for the property taken or injured thereby.95 The in town meeting, selectmen or other town authorisubject of alteration of highways is regulated by ties, surveyors, railroad commissioners, and vari26 Pa. Super. 219; In re East the width of a road, was repealed by of supervisors of any county, Twelfth St., 42 Pa. Co. 514. (3) So the act of March 18, 1872 (Wag. St. | through which any state road may the word "alter," in the act of 1843 c 120 art 1 § 72), and an order re- be laid out, authority to alter it (P. L. p 214), is sufficiently com-ducing the width after the repeal within the limits of the county, but prehensive to cover the widening of was void. Boonville Special Road not to discontinue unless the road a road within the restrictions im- Dist. v. Fuser, 184 Mo. A. 634, 171 lies wholly within the county. Hark posed by the general law. Lowry v. SW 962. v. Gladwell, 49 Wis. 172, 5 NW 323. Millcreek Tp., 61 Pa. Super. 285. 3. State V. State Militia Road (4) This is also true of the term as Comrs., 45 S. C. L. 485; St. Bartholoused in the act of 1868. In re Loyalmew's Parish Road Comrs. v. Mursock Tp. Road, supra. ray, 30 S. C. L. 335; State v. St. Helena Road Comrs., 15 S. C. L. 5. 4. Latham v. Wilton, 23 Me. 125. 5. Clement v. Burns, 43 N. H. 609; Hutchinson v. Chester, 33 Vt. 410. 6. See statutory provisions.

91. Ind. Gipson v. Heath, 98 Ind.

100.

21.

Mass.-Bowley v. Walker, 8 Allen

Mich.-Weber v. Ryers, 82 Mich. 177, 46 NW 233.

N. H.-State v. Canterbury, 40 N. H. 307.

N. J.-State v. Vanderveer, 48 N. J. L. 80, 2 A 771.

Wis. State v. Reesa, 59 Wis. 106, 17 NW 873.

98. Nicholson v. New York, etc., R. Co., 22 Conn. 74, 56 AmR 390; Wright v. Doniphan, 169 Mo. 601, 70 SW 146; State Highway Dept. v. Mitchell, 142 Tenn. 58, 216 SW 336.

[a] Reduction of width. - Mo.
Gen. St. 1865 p 290 § 5, did not re-
duce the width of a road, previously
established, from sixty to forty feet,
since by its terms it only refers to
roads thereafter to be established.
Wright v. Doniphan, 169 Mo. 601, 70
SW 146.
Mit-

99. State Highway Dept. v.
chell, 142 Tenn. 58, 216 SW 336.
1. Ala. James V. Hendree, 34
488.

But see Washington Female Semi-Ala. nary v. Burgess, 23 Pa. Co. 545 Ga. Bibb County v. Reese, 115 Ga. (straightening curb line and setting 346, 41 SE 636. back pavement not "change of location").

[a] Departure from route of old highway. The commissioners, in straightening curves or corners, may depart entirely, for short distances, from the route of the old highway; and the fact that the new route varied in some places four rods from the limits of the old road is no objection. Gipson v. Heath, 98 Ind. 100; State v. Canterbury, 40 N. H. 307.

92. Callender V. Marsh, 1 Pick. (Mass.) 418.

93. Bigelow V. Worcester, 169 Mass. 390, 48 NE 1; Rogers v. Attica, 113 App. Div. 603, 98 NYS 665 [aff 188 N. Y. 625 mem, 81 NE 1174 mem]; Hutchinson V. Chester, 33 Vt. 410; Harrison V. Milwaukee County, 51 Wis. 645, 8 NW 731. But see Waddell v. New York, 8 Barb. (N. Y.) 95 (power to "alter and amend" a street included power to change its grade).

[a] Where a highway is raised eighteen feet and carried by a bridge over a railroad formerly crossed at grade, it is a change in the structural formation of the way, not merely made for repair, and can be effected only under the authority of, and on a plan fixed by, those having power to lay or alter ways, and order specific changes. Dana v. Boston, 170 Mass. 593, 49 NE 1013. Change of grade of city streets see Municipal Corporations [28 Cyc 839]. 94. Bigelow V. Worcester, 169 Mass. 390, 48 NE 1.

95. Connecticut Light, etc., Co. v. Southbury, (Conn.) 111 A 360; Nicholson v. New York, etc., R. Co., 22 Conn. 74, 56 AmD 390; Peo. v. Clark, 283 Ill. 221, 119 NE 329.

96. See statutory provisions. 97. Cal.-Red Bluff v. Walbridge, 15 Cal. A. 770, 116 P 77.

Ill.- -Peo. v. Clark, 283 Ill. 221, 119 NE 329.

Mo.-Boonville Special Road Dist. v. Fuser, 184 Mo. A. 634, 171 SW 962. Pa.-In re Widening of Louden St., 13 Pa. Dist. 754.

Tex.-Hall v. Houston, etc., R. Co., (Civ. A.) 114 SW 891.

Vt.-Hutchinson v. Chester, 33 Vt.

410.

[a] Town or county ways.Where bridge over an old town road was constructed with county aid as provided by St. (1915) § 1319, the bridge was a town bridge, and

§ 1265, prohibiting towns from altering highways improved by county board, did not apply; the latter section applying only to such roads as have been improved under § 1317 m5 (1). State v. Behnke, 166 Wis. 65,

Ind.-Patton v. Creswell, 120 Ind.
147, 21 NE 663; Houlton v. Carpen-162 NW 443.
ter, 29 Ind. A. 643, 64 NE 939.
Md. Jenkins v. Riggs, 100 Md.
427, 59 A 758.

Mass. Watertown V. Middlesex
County, 176 Mass. 22, 56 NE 971,
N. C.-Scott v. Cabarrus County,
170 N. C. 327, 87 SE 104.

S. C.-State v. Raborn, 60 S. C.
78, 38 SE 260.

Tex.-Morriss v. Cassady, 78 Tex. 515, 15 SW 102.

[a] A single commissioner has no power to alter a road. St. Bartholomew's Parish Road Comrs. v. Murray, 30 S. C. L. 335.

[b] Commissioners' court see Morriss v. Cassady, 78 Tex. 515, 15 SW 102.

[c] In Massachusetts the omis-
sion of the selectmen to make a
written report to the town of their
alteration of a town way, on a writ-
ten petition for an alteration, is such
a refusal or neglect to alter it as
gives jurisdiction of the matter to
the county commissioners, under
Rev. St. c 24 § 71. New Marlbor-
ough v. Berkshire County, 9 Metc.
423.

2. See statutory provisions.
[a] In Iowa Code (1887) § 427,
enacts that the board of supervisors
of any county shall have power, on
its own motion, to change and es-
tablish a highway along a stream,
when it can avoid bridging such
stream. This statute does not re-
quire the road to be constructed on
the immediate bank of the stream,
but it may be within a reasonable
distance. Stahr v. Carter, 116 Iowa
380, 90 NW 64.

c

[b] In New York Acts (1875) 482, conferring upon boards of supervisors authority to authorize the laying out of highways of a less width than is now required by law, and reducing the width of highways now in existence, does not confer upon such boards power to adopt a resolution or ordinance reducing the width of a road already in existence, but merely authorizes them to provide by suitable legislation for the doing of those acts by commissioners of highways or by other suitable agencies. Phillips v. Schumacher, 10 Hun 405.

[b] Concurrent jurisdiction.-Gen. | St. (1913) § 2520, authorizes the county board to alter or vacate a town road along the shore of a meandered lake, but does not take from the town board authority to alter such a highway. Goerndt v. Scandia Valley, (Minn.) 180 NW 914.

[c] A member of a highway committee of a town council cannot give permission to widen a highway. Stone v. Langworthy, 20 R. I. 602, 40 A 832.

[d] In New York L. (1882) p 381 c 317, provides that county boards of supervisors may authorize town boards to alter or discontinue any public highway laid out by the state within their boundaries. Peo. v. Vandewater, 176 N. Y. 500, 68 NE 876 [rev 83 App. Div. 54, 82 NYS 627].

[e] In Pennsylvania the act of April 13, 1843 (P. L. p 218) § 20, authorizing supervisors in Erie township "to lay out and alter" public roads, has not been repealed by any subsequent general act. Lowry v. Millcreek Tp., 61 Pa. Super. 285.

[f] In Wisconsin Rev. St. (1898) §§ 1265-1269, authorize town supervisors to lay out, widen, alter, or discontinue highways on petition therefor. State v. Burgeson, 108 Wis. 174, 84 NW 241.

7. Holmes v. Jersey City, 12 N. J. Eq. 299.

[a] In California a county surveyor not being authorized to cut down the width of a highway, his direction to one, who had his fence in the highway, to move it back to a certain line, did not have the effect of cutting the highway down to such line, it being, as a matter of fact, still wider. Red Bluff v. Walbridge, 15 Cal. A. 770, 116 P 77.

8. Nicholson v. New York, etc., R. Co., 22 Conn. 74. 56 AmD 390.

[a] Railroad crossing.—(1) Where the removal of a grade crossing renders it necessary to lay out and construct a new highway for a short distance, the action of the railroad commissioners does not interfere with the general power of towns as to laying out new highways, but such action is merely the alteration of an existing highway, and not the

[a] Repeal of statute.-The act of March 23, 1868 (L. [1868] p 150) § 5, [c] In Wisconsin Rev. St. (1871) authorizing proceedings to reduce c 19 § 105 confers upon the board establishment of a new one. Doo

ous courts.9 A public highway, however established, cannot be altered or changed at the will of the owner of the land over which it passes.10

[200] (2) Roads, in Different Jurisdictions. In the absence of statutory prohibition, local tribunals have authority to make alterations in a highway within the limits of their town or county, although such highway is a part of a continuous line of road running into other towns or counties.11 Special provision is usually made, however, for the alteration of highways extending through or into more than one town or county.12

mini so far as they should think them necessary or proper.13 Under this provision, the jury may make alterations in a highway that has been located anew by the commissioners.14 The power which the statute gives to such a jury is very limited.15 They cannot revise the judgment of the commissioners as to the common convenience and necessity of laying out or altering the way in question;16 neither have they authority to make an entire new line of way from one terminus to the other, nor to change the termini of the road as located by the county commissioners,18 nor to remove the road, or any part of it, to the land of another proprietor.19 They can make only minor alterations, limited to the land of the petitioners, and thus render the way less burdensome to them.20 But a petition is not vitiated by including in it a prayer for alterations which it would not be in the power of the jury to grant.21 The verdict is suffialterations in the location, and may appeal from the decision of the court of common pleas adjudicating upon the acceptance of the verdict. Westport V. Bristol County, 9 Allen (Mass.) 204; Gloucester v. Essex County, 3 Metc. (Mass.) 375; Lanesborough V. Berkshire County, 22 Pick. (Mass.) 278.

[§ 201] (3) By Jury. Under a Massachusetts statute it was provided that a party aggrieved by the doings of the county commissioners in the location or alteration of a highway could, upon proper preliminary proceedings, have a jury to determine the matter of his complaint, and the jury could make any alterations prayed for between the terlittle v. Branford, 59 Conn. 402, 22 | NE 329. A 336. (2) Where two highways Ind.-Holcraft v. King, 25 Ind. cross a railroad half a mile apart, 352; Houlton v. Carpenter, 29 Ind. and unite, a short distance after, on A. 643, 64 NE 939. the east, the railroad commissioners have authority, under Sess. L. (1876) p 102, and Sess. L. (1884) p 378, to make an order to unite these highways on the west side of the railroad, thus saving more than one crossing of the railroad. Suffield v. New Haven, etc., R. Co., 53 Conn. 367, 5 A 366.

9. See statutory provisions. [a] County courts.-(1) Rockcastle County v. Norton, 189 Ky. 690, 225 SW 1079; Conrad v. Collins, 2 KyL 435; Foster v. Dunklin, 44 Mo. 216; Heiple v. Clackamas County, 20 Or. 147, 25 P 291; Harner v. Monongalia County Ct., 80 W. Va. 626, 92 SE 781. (2) Under Acts (1915) p 1400, providing for the establishment of road improvement districts, and § 36, the commissioners have no power to change the route of a county road, unless the county court orders the change. Jones v. Sevier County Road Impr. Dist. No. 1, 126 Ark. 318, 190 SW 567.

Ky-Rockcastle County v. Norton,
189 Ky. 690, 225 SW 1079.
Mass.-Byrne v. Savoie, 225 Mass.
338, 114 NE 367.

Mo.-State v. Young, 27 Mo. 259.
11. Jackson V. Smiley, 18 Ind.
247; McLain V.

14. Gloucester v. Essex County, 3 West Washington | Metc. (Mass.) 375; State Lunatic Borough, 31 Pa. Super. 471. Hospital V. Worcester County, 1 Metc. (Mass.) 437; Merrill v. Berkshire, 11 Pick. (Mass.) 269.

[a] A borough is authorized to change, within the borough limits, the grade of a road which extends beyond the line of the borough, and which was not laid out by the authorities of the borough. McLain v. West Washington Borough, 31 Pa. Super. 471; Rothwell V. California Borough, 21 Pa. Super. 234.

15. Yeamans v. Hampden County, 105 Mass. 140; Boston, etc., R. Co. v. Middlesex County, 1 Allen (Mass.) 324; Lanesborough V. Berkshire County, 22 Pick. (Mass.) 278.

16. Yeamans v. Hampden County, 105 Mass. 140; State Lunatic Hospital v. Worcester County, 1 Metc. (Mass.) 437; Lanesborough v. Berkshire County, 22 Pick. (Mass.) 278; Merrill v. Berkshire, 11 Pick. (Mass.) 269.

17. Hobart v. Plymouth County, 100 Mass. 159; Gloucester v. Essex County, 3 Metc. (Mass.) 375; Merrill v. Berkshire, 11 Pick. (Mass.) 269.

12. See statutory provisions. [a] In Vermont (1) the county courts are authorized, through the aid of commissioners, to alter highways extending through or into more than one town, but wholly within [a] The regularity and legality the county. Hutchinson v. Chester, of the proceedings of the commis33 Vt. 410. (2) The supreme court sioners (1) are to be assumed by has the same powers when the high- the jury. Yeamans V. Hampden [b] Court of quarter sessions.— way petitioned to be altered extends County, 105 Mass. 140. (2) All evi(1) In re Pottsville Borough, 140 Pa. through or into more than one coun-dence relating thereto or to prior 531, 21 A 500; Cook v. Deerfield Tp., ty. Hutchinson v. Chester, supra. proceedings in regard to the same 64 Pa. 445, 3 AmR 605. (2) The only [b] In Wisconsin (1) the power and other ways in the vicinity is irtribunal that can reduce the width given by Rev. St. § 67 c 19, to the relevant except so far as it tends to of a highway is the court of quar-supervisors of two adjoining towns prove the extent and character of ter sessions. The common pleas has to lay out a town line road, is held the travel over the way in question, no jurisdiction. But the quarter ses- to include the power of altering such as bearing upon the question of what sions has no authority to grant a re- road upon application duly made to width it needs to have. Yeamans v. view to widen, straighten, and fix them for that purpose. Neis v. Fran- Hampden County, supra. the limits of a road already laid out zen, 18 Wis. 537. (2) The statutes and used for many years. Chester seem to make a distinction between Tp. v. Baltimore, etc., R. Co., 3 Del. state and territorial roads. L. (1869) Co. (Pa.) 151. (3) Its power is only to c 152 § 90, prohibits town boards lay out, vacate, and alter or change of supervisors from altering any and an established route. In re Church all state roads. But such statute Road, 5 Watts & S. (Pa.) 200. (4) does not take away the power of Under the act of 1874, requiring the such boards to alter territorial roads proceedings for widening a street, provided they lie "wholly within on approval of the board of sur- such towns," which words are held veyors, to be "as now required by to mean and define a road which law," the act of 1871 in this regard begins or ends within the town governs, and the court of quarter limits. State v. Hayden, 32 Wis. 663. sessions of the county of Philadel- 13. Mass. Rev. St. c 24 § 13; Mass. phia has no jurisdiction of a pro- Gen. St. c 43 §§ 19, 20. See also Dean [a] The phrase "alterations beceeding to widen a street on one v. Lowell, 135 Mass. 55; Yeamans v. tween the termini," in the meaning side upon petition of the property Hampden County, 105 Mass. 140; of the words in their ordinary use, holders only on the side to be Boston, etc., R. Co. V. Middlesex distinctly imports a change in the widened. In re Chestnut St.. 86 Pa. County, 1 Allen (Mass.) 324: State course or direction of the road, and 84. (5) The court of quarter sesLunatic Hospital V. Worcester not in the mode of its construction, sions has jurisdiction to change the County, 1 Metc. (Mass.) 437. or in the place and manner in which route of a state highway. In re it is to be built and finished; and in Cambria County Road, 43 Pa. Co. 13. respect to this latter the jury have [c] Court of general sessions. no duty to perform. Westport v. Alston's Pet.. 17 Del. 359, 40 A 938; Bristol County, 9 Allen (Mass.) 204; In re Day, 30 Del. 556, 109 A 573. Boston, etc., R. Co. V. Middlesex County, 1 Allen (Mass.) 324.

[a] Two objects are contemplated by the statute, to be accomplished by a jury; one is to alter the assessment of damages made by the commissioners, and the other is, within [d] Levy courts. Under Acts certain limits, to make alterations (1821) c 152. the levy court of Bal- in the location of the road by the timore county has jurisdiction and commissioners. Lanesborough power of opening a new road, or of Berkshire County, 22 Pick. (Mass.) altering or vacating an old road. 278. Williamson v. Carnan, 1 Gill & J. [b] Party aggrieved.-In the lo(Md.) 184. cation of a highway by the county 10. Ida.-Gross v. McNutt, 4 Ida. commissioners, the town through 300, 38 P 935. which it passes is a party, and as such may apply for a jury to make

Ill.-Peo. v. Clark, 283 Ill. 221, 119

V.

18. Hobart v. Plymouth County, 100 Mass. 159; Hayward v. North Bridgewater, 5 Gray (Mass.) 65; Gloucester v. Essex County. 3 Metc. (Mass.) 375; State Lunatic Hospital v. Worcester County, 1 Metc. (Mass.) 437; Lanesborough v. Berkshire County, 22 Pick. (Mass.) 278; Merrill v. Berkshire, 11 Pick. (Mass.) 269.

136.

19. Wilson v. Beverly, 103 Mass. 20. Wilson v. Beverly, 103 Mass. 136; Hobart v. Plymouth County. 100 Mass. 159; Gloucester V. Essex County, 3 Metc. (Mass.) 375; Merrill v. Berkshire, 11 Pick. (Mass.) 269. 21. Westport v. Bristol County, 9 Alien (Mass.) 204.

ciently certain if it gives the commencement and termination, and the courses and distances.22 It is not necessary to name the owners of the land over which the road is established, because the jury have no power to lay out the road over the land of any other person.23

[§ 202] c. What Roads May Be Altered. A road becomes a public highway within the meaning of a statute authorizing the alteration of public highways 24 either where it has been laid out pursuant to statutory directions,25 or where it has been used over twenty years as a highway,20 or where it has been laid out and dedicated to public use as a highway by the owner of the soil, and accepted or ratified as a highway by the township in which it lies.27 The fact that a highway has not been opened or used will not prevent its alteration if the circumstances require it.28 The alteration of special classes of highways may be provided for by special statute.29

posed alteration need not be a public necessity; it is sufficient if it would be of public utility.31 The alteration of a road is authorized on any ground for which a new road might be established.32 The possible danger from trains operated on a railroad track or the frightening of horses thereby is a proper consideration in determining the expediency of the proposed alteration.33 If the public interest requires the alteration, it will be made, even at any sacrifice of private interest; but such sacrifice will never be required, except upon the ground of the general good.34 Conversely if no inconvenience results to the public, the mere fact that the change promotes the interest of an individual will not make such change unlawful.35

[§ 204] e. Proceedings (1) In General. Authority under the order to open is exhausted by the action of those to whom it is directed, and cannot be resumed;36 and a road, once laid, cannot be altered, except by a new and original proceeding, according to the road law.37 This is true, even though the boundaries do not precisely conform to the survey.38 The alteration of a highway must be effected in a regular proceeding for that purfor the value of the land taken, they may be compensated. Helm v. Short, 7 Bush (Ky.) 623. (2) When it appears that a county road gives the public reasonably convenient access to a railroad station, and that a proposed change of the road, so as to make it pass nearer the station. would make the road longer, and render the danger of horses becoming frightened from the trains greater, while it would not make the road itself better, the change is properly refused. Bennett v. Greenup County, 17 SW 167, 13 KyL 349.

[§ 203] d. Grounds of Alteration. Public roads are laid out for the public convenience, and, therefore, should not be altered, except when the interests of the public require the alteration.30 The pro[a] The proper course (1) is for vided that nothing in the act shall the commissioners to issue the war-be so construed as to interfere with rant for a jury in the general form existing highways in the settled porto determine the matter of the peti- tions of the territory," a person tioners' complaint, and to make such seeking to prevent the change of a of the alterations prayed for there- highway must show that it was in as may be lawful and meet. legally established in a settled porWestport v. Bristol County, 9 Allen tion of the territory, or existed by (Mass.) 204. (2) When the jury is prescription, at the time such act impaneled, it then becomes the duty was passed. Keen v. Fairview Tp., of the presiding officer to decide, 8 S. D. 558, 67 NW 623. upon the facts as they are made to appear, whether any specific alteration asked is within their power. Westport v. Bristol County, supra. 22. Merrill v. Berkshire, 11 Pick. (Mass.) 269.

23. Merrill v. Berkshire, 11 Pick. (Mass.) 269.

34. Kenedy v. Erwin, 44 N. C.

[b] Highway passing along bank of river.-3 Howell St. Aunot. §§ 1365, 1366, providing that when any public highway "which passes along the bank" of any lake, river, [b] In Connecticut Gen. St. or other watercourse, and which is § 3489, provides that the railroad not included in the limits of a city commissioners, where the public or village, shall, by the washing safety requires it, may order such 24. See statutory provisions. away of the banks, or from any alterations in any highway crossed [a] The words "public highway" other cause, become reduced to aat grade by a railroad as they shall may be regarded as used to desig-width of less than fifty feet, the deem best. Doolittle v. Branford, 59 nate and comprehend all roads open highway commissioners shall lay out Conn. 402, 22 A 336. to the public, owned by the state, such highway upon adjacent lands as the ultimate proprietor, for use as to that width, does not refer to highways, maintained at public ex-highways in which a ditch or other pense, subject to legislative control, artificial watercourse may be laid, and under the protection and man- and which may be so reduced in agement of governmental agencies, width. De Lapp v. Beckwith, 114 such as counties, townships, or road Mich. 394, 72 NW 237. districts, and to distinguish such highways from others owned by private corporations, and maintained at private expense, as toll roads owned by turnpike or gravel road companies. Houlton v. Carpenter, 29 Ind. A. 643, 64 NE 939.

25. Holmes v. Jersey City, 12 N. J. Eq. 299.

26. Ind.-Houlton v. Carpenter, 29 Ind. A. 643, 64 NE 939.

Mass.-Lincoln v. Com., 164 Mass. 1, 41 NE 112.

N. J.-Holmes v. Jersey City, 12 N. J. Eq. 299.

Y.

N. Y.--Snyder v. Plass, 28 N.
465.
Wash.-Cunningham v. Weedin, 81
Wash. 96, 142 P 453.

30. Com. v. Cambridge, 7 Mass. 158; Kenedy v. Erwin, 44 N. C. 387; Matter of Chestnut St., 11 Phila. (Pa.) 411.

31.

Barnard v. Durrence, 22 Ga. A. 8, 95 SE 372; Thompson v. Deprez, 96 Ind. 67; Com. v. Cambridge, 7 Mass. 158.

387.
35. State v. Ousatonic Water Co.,
51 Conn. 137; State v. State Militia
Road Comrs., 45 S. C. L. 485.

[a] A private corporation may be
granted power by their charter to
alter the course or bed of existing
highways with the approval of the
selectmen of the town where the
highways are located, whenever it
becomes necessary or convenient to
do so in the construction and main-
terance of a dam across a river.
State V.
Ousatonic Water Co., 51
Conn. 137.

36. Morrow v. Com., 48 Pa. 305; Ross v. Malcom, 40 Pa. 284; McMurtrie v. Stewart, 21 Pa. 322.

[a] By "necessity" is not to be understood absolute physical necessity, but so great a public benefit that the want of the way is a great public inconvenience. Com. v. Cam37. Patterson v. Munyan, 93 Cal. bridge, 7 Mass. 158. 128, 29 P 250 [dist Watkins V. [b] Evidence as to utility of Lynch, 71 Cal. 21, 11 P 808]; Babchange. The opinion of a witness as cock v. Welsh, 71 Cal. 400, 12 P to the public utility of a proposed 337]; Hancock v. Wyoming, 148 Pa change of a highway is not admis-655, 24 A 88; Van Buskirk v. Dawsible as evidence. Thompson v. De-ley, 91 Pa. 423; Cook v. Deerfield Tp.. prez, 96 Ind. 67; Yost v. Conroy, 92 Ind. 464, 47 AmR 156.

32. Turlow v. Ross, 144 Mo. 234,

[a] In Michigan under L. (1881) No. 243, revising the road laws, a highway commissioner may alter a public road, whether it has been 45 SW 1125. long in use or not. Weber v. Ryers, 33. Helm v. Short, 7 Bush (Ky.) 82 Mich. 177. 179, 46 NW 233, 234. 623; Bennett v. Greenup County, 17 27. Holmes v. Jersey City, 12 N. SW 167, 13 KyL 349. J. Eq. 299. [a] Danger from railroad trains. 28. In re Gettysburg State Road,(1) The fact that a public road can2 Penr. & W. (Pa.) 289; Com. v. not be traveled without danger from House, 4 PaLJ 327, 3 PaLJR 1.

64 Pa. 445, 3 AmR 605; Morrow v. Com., 48 Pa. 305; Ross v. Malcom, 40 Pa. 284; Furniss v. Furniss. 29 Pa. 15; Holden v. Cole, 1 Pa. 303.

[a] Opening and clearing road to legal width.-This rule does not prevent the supervisors from opening and clearing the road to its legal width. McMurtrie v. Stewart, 21 Pa. 322.

locomotives and cars operated on a 38. Patterson v. Munyan, 93 Cal 29. See cases infra this note. railroad is sufficient to justify the 128, 29 P 250; Babcock v. Welsh, 71 [a] Section lines. -Under the county court in changing the road, Cal. 400, 12 P 337; Gray v. North Territorial Act of Jan. 12, 1871 however great the inconvenience Versailles Tp.. 208 Pa. 77, 57 A 190; (Comp. L. § 1189), declaring that which may result therefrom to the Hancock v. Wyoming, 148 Pa. 635, 24 all section lines shall be public high- owners of the lands on which the A 88; Com. v. Dicken, 145 Pa. 453, ways So far as practicable, "pro- change is proposed, for which, and 22 A 1043; Morrow v. Com., 48 Pa.

« AnteriorContinuar »