Ala. v. Hendree, 34 Ind. Anderson v. Huntington, 40 Mo.-Cooper County v. Geyer, 19 Oh-Heddleston v. Hendricks, 52 Tenn.-Stanley v. Sharp, 1 Heisk. 417. HIGHWAYS as [29 C. J.] 507 application to be made by written petition,** signed statutes of practically all the states require such by the persons named,45 steps may be taken by some designated board or except where the initial court on its own initiative.46 that the statutory form be strictly followed. It is not necessary substantial compliance is sufficient, expressing with A reasonable certainty the action desired.47 tition must state specifically the object; and that The pemust appear to be clearly within the purview of the act giving the court jurisdiction, otherwise the proceedings are irregular.48 the existing road,40 It should describe the route of the proposed Pa. 250. And see infra § 208. ers of land crossed by a county road the au King, [1901] 1 K. B. 747. pose, 39 and the statutory requirements must be strictly adhered to and complied with,40 especially in all matters that are intended to affect individuals or the general public with notice.11 some circumstances, however, there may be a legal Under change in the location of the highway, notwithstanding the want of statutory proceedings.*2 And in some cases it will be presumed that formal proceedings were taken for the alteration of the highway in question.1 43 [§ 205] (2) Petition-(a) In General. Under the provisions of some early statutes an application to change or alter a public highway could be made by motion, provided notice was given, but the later 305; Clark v. Com., 33 Pa. 112; Fur-Vernon Tp. Road, 70 Pa. 23. niss V. trie v. Stewart, 21 Pa. 322; Holden v. change in location of Furniss, 29 Pa. 15; McMurCole, 1 Pa. 303. [c] Consent of landowner. — A 39. Ala.-James county road, under Code (1906) c 43 § 21 (Code [1913] c 43 § 21 [§ 1747]), part of a thereto, the consent of the owner of requires, the land over which the road fora condition precedent merly ran. Va. 542, 96 SE 942. Dudding v. White, 82 W. risdiction over proceedings for the [d] Relinquishment by landownowner. (1) The courts have no jurelocation of a highway, under Rev. St. (1909) § 10461, where one of the ment of the right of way. landowners did not file a relinquish(2) "Said section merely provides for v. Wassman, (Mo.) 178 SW 466, 468. Stegner the parties consent an amicable proceeding, where all Tex.-Ballard v. Bowie County, 59 the parties fail quishment of the right of way. and file relinTex. Civ. A. 438, 126 SW 56. [a] If The statute right of way, it would appear that to relinquish the provide that a road shall not be al-or may expressly the procedure for the condemnation tered except by an order made in a regular proceeding for that purpose. sections of the statute; e. acquisition of have to be instituted under other visions of the General Statutes an the land would James v. Hendree, 34 Ala. 488; Stan- tions 10435 or 10462." See statutory provisions. [a] In Kentucky, "under the proley v. Sharp, 1 Heisk. (Tenn.) 417. [b] Time of commencing proceedsec-application to open a new road, or Wassman, supra. ings. Proceedings by the township souri the filing of a plat of the road proposed application; but the act of to change an old one, could be made commissioner of highways to [e] Filing plat of road.-In Mis- had been given in writing of the by motion, provided the usual notice demn land for the purpose of alter-requisite to valid proceedings. con- with the county court is not a pre- 1894, which is chapter 110 of the ing a highway, under Annot. c 29 §§ 1296-1305, are Howell St. v. Monniteau County Ct., 113 Mo. A. change in these proceedings by reirregular State Kentucky Statutes, made a material not 586, 87 SW 1193. taken during the pendency of cer- be altered is immaterial where there least five landholders of the county, premature because tiorari to review a former decision is no doubt as to the highway in- and setting forth a description of [f] Misnomer of the highway to be by written petition, signed by at quiring that such application should of the commissioner such highway, where such decision Div. 564, 90 NYS 845. discontinuing tended. is afterward held void. Peo. v. Van Brunt, 99 App. the road, etc." Ford v. Collins, 108 Stagray, 75 Mich. 32, 42 NW 665. Weber v. [g] In 40. New Ill. York widening of a country highway in- 277. Farrelly Ky. 553, 56 SW 993, 994, 22 KyL 251. where Ill. 415, 50 NE 118. V. Kane, 172 the volves 45. Ill.-Bailey v. McCain, 92 Ill. Ky-Thompson v. Crabb, 6 J. J. respectively twenty-eight and the taking of strips, in front of dwellings situated 147, 21 NE 663; Taylor v. Lucas, 8 two Marsh. 222. Ind.-Patton v. Creswell, 120 Ind. taking is feet from the highway, sev- Blackf. 289. not the (Consol. L. c 25) § 200, prohibiting within Highway L. yards or inclosures necessary to the the laying out of highways thereof, unless ordered by the county Ct., 80 W. Va. 626, 92 SE 781. 283. Berkstresser, and enjoyment of Wis.-Neis v. Franzen, 18 Wis. 537. the division, in the absence of anything 689; Harris v. Mahaska County, 88 46. court, confirmed Harner v. Monongalia County by the appellate necessary to the use and enjoyment Riggs, 100 Md. 427, 59 A 758. to show that the entire yards are 47. Polk v. Irwin, (Iowa) 181 NW 86 Misc. 281, 148 NYS 384. Iowa 219, of the dwellings. 55 NW 324; Jenkins v. Kubak v. Halsey, May 5, 48. thorizing the proper authorities of Hereford Tp. Road, 22 Pa. Dist. 781; [h] In Pennsylvania the act of 179 Mo. 472, 78 SW 793; In re Church Wisner v. Barber County, 73 Kan, 324, 85 P 288; Wilhite v. Wolf, 1911 (P. L. р 123), where they deem it advisable and counties, boroughs, and townships, In re Blakely Road, 8 Pa. Co. 498; au- Road, 5 Watts & S. (Pa.) 200; In re fected can agree with property owners af- NW 443. parts of public highways under their State v. Behnke, 166 Wis. 65, 68, 162 control without procedure by view, to damages, to change expenses" of such change, "including etc., provided that damages," do not exceed three thou"the costs and and Mass.-Byrne v. Savoie, 225 Mass. Mich.-Pratt v. Lewis, 39 Mich. 7. 129. 282. N. Y.-Peo. v. Van Brunt, 99 App. Pa-Hancock v. Wyoming, 148 Pa. [a] A statute providing for the enty use sand the new as the entire cost"-the sum, expressed dollars, prima facie means [b] To make a change from the etc., going into the construction of in dollars, of all the labor, material, route of the original view before the road is opened in whole or in part, payable to property owners injurithe proper proceeding is not a peti- ously affected. It does not mean the route, plus the damages tion to change and vacate, but a petition to review, upon which the sumption of part of the burden by cost to the public, reduced by the asCourt is at liberty to adopt the report of the viewers, or that of the Tp. Road, 22 Pa. Dist._781. private reviewers as may seem best. persons. In re Hereford 41. In re Salem Tp. Road, 103 In re 56 SW 993, 22 KyL 251. Mo. 45 application speaks of laying out a change prayed for in a highway will 56 should state the names of the property owners over road,50 the termini thereof,51 the character of the N. Y.-Peo. v. Van Brunt, 99 App. Div. 564, 90 NYS 845. Pa. In re Curtin, etc., Tps. Road, 23 Pa. Co. 328. [a] A petition failing to describe the old road is fatally defective (1) notwithstanding a description of the proposed change. Scherer v. Bailey, 34 Ind. A. 172, 72 NE 472. (2) Under a petition professing to describe an existing highway, but in fact describing a highway as it will exist if the improvement is made, the court cannot order the straightening of an existing highway not described. Lowe v. Brannon, 105 Ind. 247, 4 NE 580. [b] Township or county.-(1) A petition for the alteration of a highway must state the township (State v. Convery, 53 N. J. L. 588, 22 A 345; Parkhurst V. Vanderveer, 48 N. J. L. 80, 2 A 771), (2) or county (In re Quemahoning Tp. Road, 27 Pa. Super. 150) in which the proposed road lies. (3) But the omission to name the township in the petition, order of view, and report is not cause for the reversal of an [b] Description too indefinite.-order of confirmation, where the The description of a highway, in a termini are so precisely described in petition for its change, as beginning the report as to leave no room for at the state line in a certain sec-doubt as to the location of the road. tion is too indefinite, where the sec- In re Quemahoning_Tp. Road, supra. tion lies a mile in extent on the 51. Del.-In re Lee, 20 Del. 576, state line; but if the point in the 60 A 832. road where the proposed change is Ga.-Barnard v. Durrence, 22 Ga. to commence is definitely pointed A. 8, 95 SE 372. out, and the line of the change desMe. Raymond V. Cumberland ignated, it will be sufficient. Shute County, 63 Mc. 112. Mass. v. Decker, 51 Ind. 241. Hyde Park V. Norfolk County, 117 Mass. 416. Or.-Johns v. Marion County, 4 Or. 46. [c] Misnomer.-In proceedings to widen a highway a misnomer of the highway, in calling it "T. Road" instead of "T. Lane," is immaterial, Pa. In re West Penn Road, 9 Pa. where the highway is sometimes Dist. 406, 23 Pa. Co. 477. called one and sometimes the other, [a] Reasonable certainty is reand, other than it, there is no high-quired in defining the termini of the way in the town known as "T. proposed route. In re West Penn Lane." Peo. v. Van Brunt, 99 App. Road, 23 Pa. Co. 477; In re Bensalem Div. 564, 90 NYS 845. Tp. Road, 1 Pa. Dist. 599, 11 Pa. Co. 398. [d] In the absence of a record showing a public road (1) the petition to vacate or change it should show a public use for twenty-one years, or a dedication to public use and the exercise of public authority over it by the supervisors. In re York Tp. Road, 11 Pa. Dist. 706. (2) The recital in a petition that the road "has long since existed and been used as a public road, although there is no record of the same," is not sufficient. In re York Tp. Road, supra. [e] In Pennsylvania the general road law of 1836 requires that every application to change or vacate a road shall set forth, in a clear and distinct manner, the situation and other circumstances of such road or highway, or the part thereof which the applicants may desire to have changed or vacated. In re Ottercreek Tp. Public Road, 104 Pa. 261; In re Curtin, etc., Tps. Road, 23 Pa. Co. 328. 50. Ind.-Kelly v. Augsperger, 171 Ind. 155, 85 NE 1004; Scherer V. Bailey, 34 Ind. A. 172, 72 NE 472. Minn. Obert v. Otter Tail County, 122 Minn. 20, 141 NW 810. Mo.-Zeibold V. Foster, 118 349, 24 SW 155. N. J.-State v. Convery, 53 N. L. 588, 22 A 345. Mo. J. Pa. In re Chartiers Tp. Road, 48 Pa. 314; In re Nelson's Mill Road, 2 LegOp 54. Wis. Neis v. Franzen, 18 Wis. 537. [a] A description which is sufficiently definite to enable a surveyor to locate the highway (1) is all that [b] The caption of a petition 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. [c] Description sufficient see In re Lee, 20 Del, 576, 60 A 862; Hyde Park v. Norfolk County, 117 Mass. 416; In re Bensalem Tp. Road, 1 Pa. Dist. 599, 11 Pa. Co. 398. alteration, the intention to vacate such unnecessary part should be specifically mentioned in the appli cation, and set out on the plans and surveys accompanying it. In re Washington Pike, 9 Pa. Dist. 52. 54. Wilson V. Berkstresser, 45 Mo. 283 (notice); Leath v. Summers, 25 N. C. 108, 22 AmD 711 (necessity and utility). 55. Conaway Ind. 187. V. Ascherman, 94 56. Bowers v. Snyder, 88 Ind. 302. 57. Zeibold v. Foster, 118 Mo. 349, 24 SW 155. 58. Conaway V. Ascherman, 94 Ind. 187; Bowers v. Snyder, 88 Ind. 302; In re Ottercreek Tp. Public Road, 104 Pa. 261. [a] Defects in present location.(1) To move the discretion of the court it is proper to recite in the petition the particular defects in the present location of the road. In re Ottercreek Tp. Public Road, 104 Pa. 261. (2) But this need not be done. In re Manheim Tp. Road, 12 Pa. Super. 279. 59. Conaway V. Ascherman, 94 Ind. 187; In re Friendsville, etc., Road, 16 Pa. Co. 172; State v. Nelson, 57 Wis. 147, 15 NW 14. [a] Residence.-Under the act of June 13, 1836, a petition to change an old road need not indicate the residence of the petitioners. In re Friendsville, etc., Road, 16 Pa. Co. 172. [b] The petition should show that the petitioners are freeholders, and that six of them "reside in the immediate neighborhood of the highway proposed to be located, vacated, or of the change to be made." Conaway v. Ascherman, 94 Ind. 187. 60. Barnard v. Durrence, 22 Ga. A. 8, 95 SE 372; Conaway v. Ascherman, 94 Ind. 187; Wagner v. Mabrt, 32 Wash. 542, 73 P 675. [a] Rule applied. — Where the change will vacate an existing way running over the lands of more than one person, and relocate it upon the lands held by two or more different owners. Conaway v. Ascherman, 94 Ind. 187. [b] Consent.-Where the petition [d] Where the petition designates does not disclose that consent of the other points on the road besides the landowner was not had, for the purtermini, the proceedings will be set pose of admitting evidence as to aside on exceptions. In re Dallas proceedings based upon that petition, Tp. Road, 8 Kulp (Pa.) 58 (holding it will be presumed that such conthat the viewers should be left free sent was obtained. Wagner V. to exercise their own judgment and Mahrt, 32 Wash. 542, 73 P 675. discretion for the public good rather 61. See supra § 198. than be bound or controlled by that 62. Cobe v. Banton, 106 Me. 418, of the petitioners for private pur-76 A 907; State v. Farrelly, 36 Mo. poses). But see In re Bensalem Tp. A. 282; Norton v. Truitt, 70 N. J. L. Road, 1 Pa. Dist. 599, 11 Pa. Co. 38; 611, 57 A 130. In re Covington Road, Wilcox (Pa.) 121 (both holding that in proceedings to vacate and relay part of a road it was not error for the petition to mention other points in the road besides the termini). 52. Barnard v. Durrence, 22 Ga. A. 8, 95 SE 372; Raymond v. Cumberland County, 63 Me. 112; In Curtin, etc., Tps. Road, 23 Pa. Co. 328. 53. re See statutory provisions. 63. Ill.-Anderson v. Wood, 80 Ill. 15; Brown v. Roberts, 23 Ill. A. 461 [aff 123 111. 631, 15 NE 301. Ind. - Kelley v. Augsperger, 171 N. J.-Green v. Loudenslager, 54 N. J. L. 478, 24 A 367; State v. Bergen, 21 N. J. L. 342. Pa.--In re Blakely Road, 8 Pa. Co. 498. W. Va.-Conrad v. Lewis County, 10 W. Va. 784. Wis.-State v. Behnke, 166 Wis. 65, 162 NW 443. And see supra § 74. [a] Such a petition is not double HIGHWAYS the road as practically to amount to a new road.64 [§ 207] (3) Parties. The proper persons to join in a petition to secure the alteration of a highway must be determined by reference to the particular statute under which the proceeding is brought.07 Addition or withdrawal of petitioners is permis new [29 C. J.] 509 sible before the petition has been acted upon,88 but not afterward.69 bound to take notice of such withdrawal in deterThe board of commissioners is mining its jurisdiction.70 [208] (4) Notice. for the alteration of highways require no notice.71 Some statutes providing As a general rule, however, the statutes require notice in proceedings to alter highways, as in the case of establishing new ones, ings invalid.73 Such notice may be required to be comply with such requirement renders the proceed72 and a failure to given to the parties interested, to the town to (1) because it seeks to have a part § 12, the petitioners for a change of of an old highway vacated land through which the part of the and a part of a road must road proposed to be changed runs. Taylor v. Lucas, 8 Blackf. 289. own all the St. c 112 § 129, providing a method [e] In Massachusetts under Pub. at railroad crossings, the petition in for altering the location of highways such case must be brought by the mayor and aldermen of the city or the selectmen of the town in which the crossing is, or by the directors of the railroad corporation. 177 Mass. 511, 59 NE 115. etc., R. Co. V. Boston, Middlesex County, ing for a change in a county road [f] St. p 1129, §§ 56-58, persons wishIn Missouri, under Wagner can only apply for it by a petition lands. showing a Mo. 283. wish to cultivate their Wilson v. Berkstresser, 45 125 NE 779. 68. Current v. Current, (Ind. A.) In 11 same one established in lieu thereof, as a change of highway implies a departure from the road already established and the opening of a new road. Kelley v. Augsperger, 171 Ind. 155, 85 NE 1004. a highway necessarily requires the (2) The change of vacation of a portion of the highway and the location of such portion upon a different line, and in this sense a vacation and location are authorized in Bowers the v. Snyder, 88 Ind. 302. proceeding. 64. Bacon v. Noble, 20 Oh. Cir. Ct. 281. Oh. Cir. Dec. 49. 65. New shire County. 9 Metc. (Mass.) 423; Marlborough V. Berkre East Hempfield Tp LegChron (Pa.) 163. Road, 2 [a] Illustrations.-(1) A petition to county commissioners to alter a town way according to a report of selectmen, which the town is alleged to have unreasonably refused to accept, may be amended, even after a Comrs., 270 Ill. 141, hearing of the parties on the peti- Tolono Highway Comrs. v. Bear, 224 Peo. v. Sullivan Tp. Highway tion, by striking out the alleged un-Ill. 259, 79 NE 581. 110 NE 347; reasonable neglect of the town, and substituting an allegation of the un70. reasonable neglect of the selectmen Current v. Current, (Ind. A.) 125 NE 779. to alter the way. 71. v. Berkshire County, 9 Metc. (Mass.) Alexander, 156 Ky. 78, 160 SW 761. New Marlborough Ark. 121, 203 Sloan v. Lawrence County, 134 423. (2) Where a petition asked for SW 260; Keeton the appointment of viewers to widen § 1, [a] a certain road, and also to widen and change into a public road a certain private road, and viewers were appointed, it was not too allow an amendment of the petition, late to making it for a single, instead of a double, purpose. field Tp. Road, 2 LegChron (Pa.) In re East Hemp163. 66. Newcastle v. Lincoln County, 87 Me. 227, 32 A 885. 67. 69. V. open and change roads, is not to be [b] In Kentucky (1) a proceeding re a See statutory provisions. [a] Number of petitioners v. Current, (Ind. quired. - Current A.) 125 NE 779. tice. 72. See statutory provisions; and: Ky-Gratzer v. Gertisen, 181 Ky. 626, 205 SW 782; Chenault v. Colcastle County v. Norton, 189 Ky. 690, lins, 155 Ky. 312, 159 SW 834; Rock225 SW 1079; Garrett v. Hedges, 17 SW 871. 13 KyL 647. Md.-Williamson v. Carnan, 1 Gill Ky. Gratzer v. Gertisen, 181 Ky. C26, 205 SW 782; Chenault v. Collins, 155 Ky. 312, 159 SW 834; MitMass. 535. chell v. Bond, 11 Bush 614. Mass. Jeffries v. Swampscott, 105 78 SW 793; Self v. Gowin, 80 Mo. A. Mo.-Wilhite v. Wolf, 179 Mo. 472, 398. N. J.-Chasmer v. Convery, 53 N. J. L. 588, 22 A 345. 49 N. Y.-Engleman v. Longhorst, 120 Or. 54, 105 P 96. 322]. N. Y. 332, 24 NE 476 [aff 6 NYSt Or.-Jensen v. Curry County, 55 Wis. 284, 5 NW 798. Wis. -Williams v. Mitchell, sion. The failure, however, to post [a] Who may complain of omissolutely void a copy of the order providing for an alteration of a highway, which was entirely on one person's land, was held not to render the order ab332, 24 NE 476 [aff 6 NYSt 322]. Engleman v. Longhorst, 120 N. Y. to other persons. 74. Ark.-Grinstead v. Wilson, 69 Ark. 587, 65 SW 108. Iowa.- - Sullivan Iowa 235, 80 NW 340. Marsh. 167. Ky. Walker Md.-Jenkins 427, 59 A 758. v. Berkstresser, 45 N. Y.-Phillips v. Schumacher, 10 V. [b] Sale of land during pendency of proceedings. alteration -An applicant for of her land a highway Pa. 165. did crossing Pa. In re Reserve Tp. Road, 80 to continue the proceeding by sellCounty, 10 W. Va. 784. not lose the right Ct., 104 ing the land during pendency of W. Va.-Hoar v. the proceeding where she, by an Lewis County instrument in writing filed with the SE 620; Conrad v. Lewis commissioners appointed Wis.-State v. Nelson, 57 Wis. 147, mine the necessity of to deter- & J. 184. 15 NW 14. tion, released all claim for damages Mass. 390, 48 NE 1. the altera[a] Mass.-Bigelow v. Worcester, 169 to her property, and in the conveyIn South Carolina, (1) under the act of 1825, relating to roads, ance of the land actually reserved the board Mo.-Self v. Gowin, 80 Mo. A. 398. without giving_notice. of the lands released for highway pur- Wis. 284. 5 NW 798. power to make alterations in a road commissioners Wis. had poses and for the purposes of the -Williams v. Mitchell, 49 mew's Parish Road Comrs. v. Murproceeding, so St. Bartholothat she [a] owner of the land upon which the Act 5 Wm. IV cap 2, to be given to requires written notice to be posted was still that no notice was necessary, under of 1883 (1 Rev. St. § 1171 et seq) In New Brunswick, it seems Ware, 18 S. C. L. 314. ray, 30 S. C. altered highway was proposed to be the objecting parties of the time in public places. L. 335; Maddox constructed. Misc. 29, 125 NYS 729 [aff 145 App. Matter of Morse, (2) The act 69 and place of the jury's meeting to 60 S. C. 78, 38 SE 260. Div. 936 mem, 129 NYS 1136 mem]. inquire into the intended alterations. is not applicable where the change [c] In Illinois, under a law au- Comrs., 5 N. B. 583. State v. Raborn, thorizing the commissioners of highV. Johnston Parish Highway is a (3) This act ways to lay out or alter any road Taylor St. p 491 § 66 (Rev. St. p 400 substantial [b] upon the petition of not less than § 1269), providing that, "upon ap-State v. Raborn, 60 S. C. 78, 38 SE mere deviation By whom made and given.- petitioners, and one point wholly on the land of the of a road at twelve legal voters residing within plication made to the supervisors for 260. three miles of the road, it was held the laying out, altering or discon- the act of 1893, which only requires not involving any that the persons joining in a peti- tinuing of any highway, they shall notice to be given to the change or relocation. tion to the commissioners must be make out a notice, and fix therein a owning the land where the altera(4) This act was repealed by citizens of the town to be affected time and place at which they will tion by such location Warne v. Baker, 35 Ill. 382. or alteration.meet," etc., merely requires the no- scribing any particular form there[d] In Indiana, under Acts (1838) tion to be given by the direction and tice of an application for an alterais to be made, without preState v. Raborn, supra. [b] Petitioners.-Where the own 80 be affected by such alteration,75 to the highway commissioner,70 or to the public generally." The form and contents of the notice, as prescribed by statute, must be substantially complied with.78 Only a general statement of the action proposed to be taken is necessary.79 A description of the road and the proposed alteration must be given,s and if the taking of land is involved, the notice must be sufficient to inform the owner that his land will be taken.81 The giving of notice must be proved,82 and, unless there is a statutory requirement to the contrary, this may be done by parol evidence.83 or quiring notice is to invite objection to the proposed | change, and any one whose interest may be affected may contest the matter.88 A remonstrance" is usually expressly provided for.89 Such a remonstrance, whether against the public utility of the proposed highway or on account of damages, constitutes an answer to the petition and tenders an issue which must be examined by the commissioners.90 The right to remonstrate against the utility of a road is not waived by first remonstrating on account of damages.91 [210] (6) Hearing and Determination. It is the duty of the public officers or court acting upon Waiver. A voluntary general appearance,84 a petition to alter a highway to make a full invesfiling a remonstrance, $5 waives the giving of notice. tigation, and this involves a hearing and due conBut one officer cannot waive a notice required to be sideration of all such facts as have a proper beargiven to another officer.88 Nor can one person ing on the merits of the petition both for and waive the notice required to be given to the public.87 against.92 The determination of the matter must [209] (5) Remonstrance. The object of re- be made within a prescribed time from the date of ers or occupants of the lands to be J. L. 588, 22 A 345; Parkhurst v. 109 Ill. 142. affected by a proposed alteration in Vanderveer, 48 N. J. L. 80, 2 A 771; a highway are the petitioners for State v. Allen, 11 N. J. L. 103. such alteration, notice of the meet- [d] Time and place of meeting of ing to decide upon the petition need viewers. In re Dallas Tp. Road, 8 not be served upon them. Sullivan Kulp (Pa.) 58. v. Robbins, 109 Iowa 235, 80 NW 340; State v. Nelson, 57 Wis. 147, 15 NW 14. 75. Huntington v. Birch, 12 Conn. 142; Com. v. Cambridge. 4 Mass. 627; Com. v. Peters, 3 Mass. 229. 76. Matter of Wood, 111 App. Div. 781, 97 NYS 871. 77. Peabody v. Sweet. 3 Ind. 514; Chenault v. Collins, 155 Ky. 312, 159 SW 834. [e] Residence of judge before whom alteration to be made.-Chasmer v. Convery, 53 N. J. L. 588, 22 A 345. 79. Hyde Park v. Norfolk County, 117 Mass. 416. 80. Gratzer v. Gertisen, 181 Ky. 626, 205 SW 782; Jenkins v. Riggs, 100 Md. 427, 59 A 758; Chasmer v. Convery, 53 N. J. L. 588, 22 A 345; State v. Nelson, 57 Wis. 147, 15 NW [a] "The reason for the enact-14. ment of statutes requiring notice to [a] A notice is sufficient if when be given to the public of altera- fairly construed it gives notice of tions in public roads or their dis- general location of proposed road continuance, before even the county showing its course with relation to courts are permitted to alter or dis- lands affected and its terminal continue them, much less individ-points. Gratzer v. Gertisen, 181 Ky. uals, is very apparent, when it is 626, 205 SW 782. considered that without such notice the public for whose use the roads are maintained would be deprived of them without an opportunity for its day in court and without a chance to show any reasons against such alterations or discontinuance." Rockcastle County v. Norton, 189 Ky. 690, 225 SW 1079, 1081. V. 85. Patton v. Creswell, 120 Ind. 147, 21 NE 663. 86. Matter of Wood, 111 App. Div. 781, 97 NYS 871. 87. Chenault v. Collins, 155 Ky. 312, 159 SW 834. 88. Self v. Gowin, 80 Mo. A. 398. 89. See statutory provisions; and Jenkins v. Riggs, 100 Md. 427, 59 A 758; Schroeder v. Jabin, 94 Mo. A 111, 67 SW 949; Self v Gowin, 80 Mo. A. 398 (holding, however, that in a proceeding by a petitioner to change a road from one place on his land to another there is no place for remonstrants, although any one whose interest may be affected may contest the matter). 91. 309. Schmied v. Keeney, 72 Ind. 92. Raab v. Roberts, 30 Ind. A. 6, 64 NE 618, 65 NE 191; Ressler v. Hirshire, 52 Iowa 568, 3 NW 613; Shaw v. Piscataquis County, 92 Me. 498, 43 A 105; In re Washington Pike, 9 Pa. Dist. 52. [a] In Missouri a protest of twelve freeholders is required in order to give remonstrants any standing, and a protest by only seven is of no avail. Schroeder v. Jabin, 94 Mo. A. 111, 67 SW 949. [b] In Washington, under Code 90. Schmied v. Keeney, 72 Ind. (1881) § 2871, the notice of the re- | 309. location of a road need not state the width of the proposed road, but only the place of beginning, the intermediate points, if any, and the place of termination. Hab v. Georgetown, 46 Wash. 642, 91 P 10. 81. Potter Ames, 43 Cal. 75; Quackenbush v. District of Columbia, [b] In West Virginia.-(1) Code 20 D. C. 300. [a] The questions to be consid(1899) c 43 § 30 (Code [1906] § 1419), [a] Illustration. — A notice was ered on such hearing are limited by does not require notice by publica-insufficient if it merely stated that the terms of the petition. Shaw v. tion for three weeks of a proposed it was proposed to alter a road to Piscataquis County, 92 Me. 498, 43 alteration of a county road. Mason twice its former width, and that a A 105. County Ct. v. Thornburg, 65 W. Va. plat of the alteration was on file, [b] Cost and damages.-The is 185, 63 SE 975. (2) The law was since this did not show an abutting sue being whether the proposed formerly otherwise. Conrad v. Lewis owner whether or not the proposed change is of public utility, the cost County, 10 W. Va. 784. alteration would affect his land. and damages incident to the change 78. See statutory provisions. Quackenbush v. District of Colum-are pertinent, so that the width of [a] Notice must be signed by the bia, 20 D. C. 300. the strip proposed to be taken, its petitioners for the alteration, and 82. Self v. Gowin, 80 Mo. A. 398. proximity to a dwelling, and the hence a finding of the county court [a] Affidavits.—(1) An ex parte character of the building affected that petitioners were freeholders re-affidavit of the giving of such notice thereby, may be shown. Raab v. siding in the vicinity of the altera-is not sufficient proof thereof. Self Roberts, 30 Ind. A. 6, 64 NE 618, 65 tion was equivalent to a finding that v. Gowin. 80 Mo. A. 398. (2) Where NE 191. the persons who signed the notice no particular character of evidence Jensen v. Curry County, is required, it is immaterial that the 55 Or. 54, 105 P 96. affidavits of service of notices fail to state that they were written. Zeibold v. Foster, 118 Mo. 349, 24 SW 155. 83. Larson v. Fitzgerald, 87 Iowa 402, 54 NW 441; Zeibold v. Foster, were such. [c] If objections to the estab lishment of the highway or claims for damages are filed, Code § 939 provides that the further hearing of the application shall stand continued to the next session of the board of supervisors held after the commissions appointed to assess damages have reported. Ressler v. Hirshire, 52 Iowa 568, 3 NW 613. [b] Statement as to land affected. -Although the notice does not specify the tracts of land to be affected by the proposed alteration by an express enumeration of the gov-118 Mo. 349, 24 SW 155. ernment subdivisions, yet if it de- 84. Davis County v. Magoon, 109 fines the proposed line of the high- Ill. 142; Com. V. Westborough, 3 way by course and by reference to Mass. 406; Matter of Wood, 111 App. [d] In Kentucky, under St. § 4301, the lines of such subdivisions, so that Div. 781, 97 NYS 871; Peo. v. Van on petition for a change of a county there is no difficulty in ascertaining Brunt, 99 App. Div. 564, 90 NYS 845. road, the court should first select therefrom the tracts to be affected, [a] A party seeking the altera- the proposed route, and then notify it is a substantial compliance with tion of a road over his land, who the landowners affected to show the statute. State v. Nelson, 57 appears before the highway commis- cause against it, and an order selectWis. 147. 15 NW 14. sioners at their meeting to determine ing a route recommended by view[c] Township in which road lies. whether to grant the application, ers is properly entered before land-In New Jersey the notice must and is heard by them, admits that owners are given an opportunity to name the township in which the road proper notice of the time and place be heard, although such an order lies, as in that state the township of the hearing was given, and he does not become final until such an controls in the appointment of sur- will thereafter be estopped from opportunity is given. Vaughan v. veyors. Chasmer v. Convery, 53 N. derying it. Davis County v. Magoon, Heistand. 190 Ky. 365, 227 SW 474. HIGHWAYS the hearing.93 [§ 212] (b) Competency and Qualification. It is important that fair, impartial, and disinterested viewers should be selected and appointed.97 A person who has a direct personal or financial interest 93. Peo. v. Van Brunt, 99 App. Div. 564, 90 NYS 845 (holding that under Village Law § 147 [L. (1897) p 416 с 4141, requiring the board of trustees twenty days from the date fixed for to determine within a hearing on the question, where the hearing in proceedings to widen a highway was fixed for April 21, a determination of the matter on May 11 was in time). 94. Dist. set an 2. 3. [29 C. J.] 511 in the alteration to be made is disqualified to serve 66 statute, such viewers need not be sworn.3 pointing them directs them 5. to re [§ 214] (d) Report. tents of the report of the viewers must be deterThe sufficiency and conmined by reference to the statute under which the alteration proceeding is brought.5 pliance with these requisites is indispensable to A strict com13 KyL 647 (where the law requires supra. that a jury in proceedings to make Garrett v. Hedges, 17 SW 871, its precise locality. a change in a public road shall be line run on the proposed route is a Craig v. North, charge, an oath administered to such ute, which requires the report to desworn by the officer having them in substantial compliance with the statcourses and distances of a single (4) A report giving the jury by the sheriff having them in scribe the route laid out and charge, he being the lawful officer ported by metes and bounds, and by for that purpose, was sufficient). In re Palmer Tp. Road, 16 Pa. Tingle v. Tingle, 12 Bush 160. The viewers general courses and 10; Mitchell v. Thornton, distances. Gratt. (62 Va.) 164. 21 [a] (5) are not expressly reIn Pennsylvania (1) bequired to name, in their report, the the report of the reviewers has been pointed under the act of 1891 to va4. See statutory provisions. where persons through whose land the road aside because view was illegal, cate, extend, and straighten a street [a] In Pennsylvania viewers ap- v. McIlvoy, 1 A. K. Marsh. (Ky.) 84. may be proposed to run. order appointing viewers Gashweller new petition should be an order to costs at the rate of five dollars a on a in a borough should each be allowed [e] In New Jersey (1) the statview, and not one to review, and a day, which must be paid by the bor- the necessity for the road applied ute requires the surveyors of highreport of reviewers appointed to re-ough; but no ways, when acting under appointview will be set aside as a nullity. In re Walnut St., 17 LancLRev 302. ter of public need, they are required ment of the court, to determine on In re York Tp. Road, 11 Pa. Dist. mileage is allowed. for. If they determine it to be a mat706. public roads six viewers are to be of the commissioners to a petition and private convenience, having a (2) In proceedings to widen See statutory provisions. appointed, and [a] In Delaware (1) the return to them to be most for the public to lay the road "as it may appear vided by the act of May 8, 1889 (P.termine what part of the old road and the shortest distance, in such a not three, as pro- for a change in a road should de- regard to the best ground for a road, L. p 129). In re Palmer Tp. Road, should be vacated 16 Pa. Dist. 10. 95. Poston v. Terry, 5 J. J. Marsh. re Lee, 20 Del. 576, 60 A 862. new, and who should inclose it. on opening the (Ky.) 220; Hawkins v. Robinson, 5 Such return is not required to state observed these statutory directions. manner as to do the least injury to J. J. Marsh. (Ky.) 8. In private [a] property," and they (2) General description sufficient. sons who inclose what portion of the costs the percertify in their return that they have must -The order need only give a gen- tion ought to pay. eral description of the old road and the vacated If they fail so to certify, the court, the proposed new one. In re Lee, supra. por- in reviewing their proceedings, will Hedges, 17 SW 871, 13 KyL 647. Garrett v. which provides that road [b] In Georgia, under Code § 603, the statutory requirements, and set presume that they have neglected [b] Erection application to the county court for alterations in old ones, of gates. On sioners shall report upon the utility Hampton v. Poland, 50 N. J. L. 367, commis- aside their return for that reason. an of all applications for new roads, or 13 A 174; Roth v. Yauger, 29 N. J. the privilege of erecting gates across mark out the same, the county com- J. L. 434. a road, the order appointing viewers missioners have no power to estab- ticularly describe the old road and must designate the place where it lish the new road until it has been cated, and shall L. 384; Brock v. Lippincott, 25 N. is proposed to erect them. (2) The return must parMullins, 3 Metc. (Ky.) 282. Bond v. marked out, and its utility reported, out. 96. Ford v. Collins, 108 Ky. 553, Culpepper, 79 Ga. 792, 4 SE 388. also as provided by said law. 56 SW 993, 22 KyL 251. the vanew one State v. Lippincott, 25 N. J. Cotting v. L. laid 97. Hoar v. Lewis County Ct., (W. p 255 c 145 § 3, requires viewers to out. 434. [c] (3) Va.) 104 SE 620. In Indiana (1) A vacated must accompany the return, map of the road Acts (1903) as well as a map of the road laid missioners and file the same with certainty as that laid out. "make a report to the board of com-scribed in the return with as much the auditor of the county, which re- Lippincott, The road vacated must be de[a] Landowner. A person port shall show the public utility or owns land along or over which it is ment, an estimate of the costs and remarkable places, and the improvewho convenience of the proposed improve- tances, with reference to the most State v. supra. proposed to establish a road for pub-expenses thereof, the damages should show the (4) The courses map lic use has such a direct personal sessed to the several tracts of lands, passes, the same as and disand financial interest as disqualifies the benefits of each 40 acres or less laying out a road. him to serve in such capacity. ments through which Lewis County Ct., (W. Va.) 104 give a description of the work proHoar tract of land where such exists, and cott, supra. the road SE 620. is required in [b] Signers of petition.-The val- kind of improvement, the commence- the courses and distances of the road State v. Lippinidity of proceedings posed, the grade, drains, culverts, port of a jury of view should state [f] In Pennsylvania (1) the rehighway is not affected by the fact Spaulding v. Mott, 167 Ind. 58, 76 NE LancLRev 160. to change a ment that some of the jurors had signed 620. and terminus of the the petition for the change. road." altered. In re Londongrove Road, 2 Dains, 38 Hun (N. Y.) 43. Peo. v. (2) The report is not required sion to designate the township in to contain a statement of the neces99. See statutory provisions. (2) But the omissity for [a] In Pennsylvania (1) the act widening which the road is situated is Spaulding v. Mott, supra. the of June 23, 1911 (P. L. p 1123) is of commissioners appointed to view which the road begins and ends, and highway. such an irregularity as will justify mandatory in requiring that view- a proposed change of a road must there is no uncertainty as to its lo[d] In Kentucky (1) the report order designate reversal, where ers be freeholders. the petition and nette Borough, Weitz v. Jean- show whose land will be affected by cation. the township in (2) At least one of them must be private conveniences and inconveni- must state briefly the improvements Pa. Dist. 1024. the change, and also the public and Pa. Super. 279. learned in the law. In re Manheim Tp. Road, 12 nette Borough, supra. Weitz v. Jean-ences 1. In re Lee, 20 Del. 576, 60 A SW 782; Vaughan v. Heistand, 190 477. of the old and (3) Moreover it 862 (person engaged in the real es- Ky. Gratzer v. Gertisen, 181 Ky. 626, 205 roads. through which the old road passes. tate business, who is familiar with Terry, 5 J. J. Marsh. 220. In re West Penn Road, 23 Pa. Co. farming land, and who is acquainted must describe the route by metes Road, 11 Pa. Dist. 706. (5) It should 365, 227 SW 474; (4) And show an effort to proPoston with the dangers of railroad crossV. cure releases ings sought to be avoided by a pro-tances. (2) It parties injured. of damages and bounds, and by courses and dis-fix from posed change in a road, is competent Garrett v. Hedges, 17 SW 871, 13 change of termini for the purpose of In re York Tp. to act as road juror under the stat- KyL 647. Craig v. North, 3 Metc. 187 permanent ute requiring road jurors to be suit- amount of land is to be taken for not some fixed and able persons). (3) And must show what starting from some fixed object will object, and a slight the purposes of the road, as well as viewers. In re Friendsville Road, 16 invalidate the action of the 98. Peo. v. Dains, 38 Hun (N. Y.) 43; Hoar v. Lewis County Ct., (W. Va.) 104 SE 620. 22 new as the termini at not |