manner,881 the times82 and the necessityssa for opening or establishing a highway. The limitation stated above is strictly applied. The necessary acts must be performed within the time and manner as directed by law. A failure in this respect will deprive the delegated body of its authority to act.884 Road in Whiteley Tp. (Pa.) 15 Atl. 895; Keen v. Fairview Tp. Sup'rs, 8 S. D. 558, 67 N. W. 623. 881 Metcalf v. City of Boston, 158 Mass. 284, 33 N. E. 586; Brown v. Greenfield Tp. Board, 109 Mich. 557; Rose v. Kansas City, 128 Mo. 135; Watson v. Town Council of South Kingstown, 5 R. I. 562; Bridgman v. Town of Hardwick, 67 Vt. 132. 882 Miller V. Colonial Forestry Co., 73 Conn. 500, 48 Atl. 98; Ingram v. State Wagon Road Commission, 4 Idaho, 139, 36 Pac. 702. A portion of a road may be constructed when the appropriation is not sufficient to complete it, but Dunn v. Sharp, 4 Idaho, 98, 35 Pac. 842, holds that there must be a survey of the entire road before the authority exists for the construction of a section. Green v. Green, 34 Ill. 320; Trotter v. Barrett, 164 Ill. 262; Combs v. Franklin County Com'rs, 71 Me. 239; Mason v. Town & Village of St. Albans, 68 Vt. 66, 33 Atl. 1068, following Landon v. Village of Rutland, 41 Vt. 681. 883 Cotting v. Culpepper, 79 Ga. 792, 4 S. E. 388; Opp v. Timmons, 149 Ind. 236, 48 N. E. 1028. Existing highways, character and number of population, location of markets, and character of soil, are all proper subjects of consideration in passing upon the necessity for the opening of a highway. Fritch v. Patterson, 149 Ind. 455, 49 N. E. Barry v. State v. (3 J. S. 380; Town of Cherokee v. Sioux City & I. F. T. L. Co., 52 Iowa, 279; Brown v. Barstow, 87 Iowa, 344, 54 N. W. 241; Strahan v. Town of Malvern, 77 Iowa, 454; Deloughrey, 47 Neb. 354; Shreeve, 15 N. J. Law Green) 57. An official decision upon an application for the opening of a highway cannot be reconsidered. Noonan v. Board of Chosen Freeholders, 52 N. J. Law, 398; In re Board of St. Opening, 82 Hun, 580, 31 N. Y. Supp. 732; Robert v. Kings County Sup'rs, 3 App. Div. 366, 38 N. Y. Supp. 521; Elwood v. City of Rochester, 43 Hun (N. Y.) 102; In re Town of Whitestown, 24 Misc. 150, 53 N. Y. Supp. 397; Singleton v. Road Com'rs, 2 Nott & McC. (S. C.) 526. The question of the necessity of a road is for a jury. State v. Stackhouse, 14 S. C. 417; Decker V. Menard County (Tex. Civ. App.) 25 S. W. 728. 884 Keech v. People, 22 Ill. 478; Highway Com'rs v. People, 61 I. App. 634; Lawndale Highway Com'rs v. Barry, 66 Ill. 496; People v. Finley, 97 Ill. App. 214; Badger v. Merry, 139 Ind. 631; Hentzler v. Bradbury, 5 Kan. App. 763, 47 Pac. 330. But mere irregularities will not deprive an official body of its jurisdiction. See, also, the case of Vanderbeck v. Blauvelt, 34 N. J. Law, 261, as holding that in the absence of evidence if any subsequent wrong had been done to the owners of the land taken in (c) Location and construction of highways. The rule of strict construction in the opening of highways including both streets and country ways also applies to the location and construction. The highway as actually opened or established must conform strictly to the course laid down in the original order or authority,885 which must not be insufficient, indefinite or uncertain;886 not based upon jurisdictional conditions cannot be inquired into collaterally. Clarke V. Council of South Kingstown, 18 R. I. 283. 885 Clark v. Town of Middlebury, 47 Conn. 331. A substantial compliance is all that is necessary. Seisler v. Smith, 150 Ind. 88, 46 N. E. 993; Shaffer v. Weech, 34 Kan. 595; Lewis v. Smith, 8 Ky. (1 A. K. Marsh.) 158. And the same principle applies as affecting the interests of a third person donating land for a highway. the opening of a highway, mere City of East Portland, 18 Or. 87, formal errors in the proceedings 22 Pac. 533; Councils of Pittsburg should not be allowed. Williams v. Cluley, 74 Pa. 262. But errors v. Lincoln County Com'rs, 35 Me. 345; Ware V. Penobscot County Com'rs, 38 Me. 492; Inhabitants of Pownal V. Cumberland County Com'rs, 63 Me. 102; Inhabitants of Boxford v. Essex County Com'rs, 24 Mass. (7 Pick.) 337; Belchertown v. Hampshire County Com'rs, 65 Mass. (11 Cush.) 189; Corey v. Inhabitants of Wrentham, 164 Mass. 18; People V. Springwells Tp. Board, 12 Mich. 434; Pagel v. Fergus County Com'rs, 17 Mont. 586. An order for the opening of a road as required by Comp. St. 1887, div. 5, § 1818, should be specific in its details. See, also, as holding the same principle, Oyler v. Ross, 48 Neb. 211, 66 N. W. 1099, where it was held that an order for survey of a highway was not sufficient as an order for its opening. State v. Newmarket, 20 N. H. 519; Vanderbeck v. Blauvelt, 34 N. J. Law, 261; Grant v. Cassedy, 33 N. J. Law, 179; Peckham v. Henderson, 27 Barb. (N. Y.) 207; Copcutt v. City of Yonkers, 83 Hun, 178, 31 N. Y. Supp. 659; Schafhaus v. City of New York, 159 N. Y. 557; Ladd v. 886 Carlton V. State, 8 Blackf. (Ind.) 208. But see Sidener v. Essex, 22 Ind. 201; Carey v. Weitgenant, 52 Iowa, 660. Page, Petitioner, 37 Me. 553. The construction of a highway becomes a duty after Woodman v. Somerset County, 25 Me. 300. The decision of the county commissioners, under the general statutes upon the location of a highway is conclusive until vacated by some legal process or proceedings. Stone v. City of Cambridge, 60 Mass. (6 Cush.) 270; Davis v. Hampshire County Com'rs, 153 Mass. 218, 26 N. E. 848, 11 L. R. A. 750. County commissioners have the authority under Mass. St. 1874, c. 305, § 1, to change the course of a highway from its original location at a railway crossing and in such a manner as to avoid a grade crossing. Woodmere the making of an order directing its establishment. Thompson v. Emmons, 24 N. J. Law (4 Zab.) 45; People v. Nash, 60 Hun, 582, 15 N. Y. Supp. 29. and the width,887 the materials of which constructed and the manner of construction 888 must also follow, with reasonable certainty, such authority. (d) Change, alteration or extension of highway. The same rules of law which control the original opening or construction of a highway apply to its change or alteration either in course, width or character, of construction. Authority should exist for any substantial change in these respects but within such authority discretionary powers are ample.s 839 § 425. Agency of construction. The old familiar rule that public officials are agents of limited powers applies to public bodies or officials vested with the power of opening, altering, changing, improving or regulating public highways. Action by them to be legal should be strictly within the limits of their authority including both its extent, manner and degree of exercise.890 Only the body or official expressly author Cemetery v. Roulo, 104 Mich. 595; Bice v. Town of Walcott, 64 Minn. 459; Butler v. Barr, 18 Mo. 357; Barry v. Deloughrey, 47 Neb. 354. Stevens v. Goffstown, 21 N. H. 454. But the road as located need not necessarily follow the course as indicated in the petition for its establishment. Lathrop v. Town of Morristown, 67 N. J. Law, 247, 51 Atl. 852; Mowbray v. Allen, 58 N. J. Law, 315; People v. Diver, 19 Hun (N. Y.) 263; McMurtrie v. Stewart, 21 Pa. 322; Dowdle v. Cornue, 9 S. D. 126, 68 N. W. 194; Fayssoux v. Kendall County (Tex. Civ. App.) 55 S. W. 583; Skinner v. State (Tex. Cr. App.) 65 S. W. 1073. 887 Beardslee v. French, 7 Conn. 125; Hentzler v. Bradbury, 5 Kan. App. 1, 47 Pac. 330; Furniss v. Furniss, 29 Pa. 15; In re West Pikeland Road, 63 Pa. 471; Hancock v. Borough of Wyoming, 148 Pa. 635; Town of Sumner v. Peebles, 5 Wash. .471. 888 Harvey v. Town of Wayne, 72 Me. 430. 889 Chicago & N. W. R. Co. v. Town of Cicero, 154 Ill. 656; Jackson v. Smiley, 18 Ind. 247; McClure v. Franklin County Com'rs, 124 Ind. 154, 24 N. E. 741; Gipsom v. Heath, 98 Ind. 100; Warren County Com'rs v. Mankey (Ind. App.) 63 N. E. 864; Stahr v. Carter, 116 Iowa, 380, 90 N. W. 64; Metcalf v. City of Boston, 158 Mass. 284, 33 N. E. 586; New York & N. E. R. Co. v. City of Boston, 127 Mass. 229; In re City of Yonkers, 117 N. Y. 564; Closson v. Hamblet, 27 Vt. 728. 890 People v. Chicago & N. W. R. Co., 118 Ill. 520; Barrow v. Hepler, 34 La. Ann. 362; Keyes v. Inhabitants of Westford, 34 Mass. (17 Pick.) 273; Davis V. Ontonagon County, 64 Mich. 404, 31 N. W. 405. Where the cost of the construction of a public road is fixed by the act of the legislature authorizing its establishment, a contract for a bonus in excess of this sum is void. 891 ized by law can exercise such powers.' The decisions do not countenance unwarranted or doubtful assumption of authority by public officials892 even if this rule results temporarily in public inconvenience. Where different public organizations are included within the same geographical limits, as, for example, an incorporated city or village within the limits of a township or county organization, questions arise frequently of the relative authority of officials over the same objects of government, and it can be said that the subsequent organization of a public corporation within the limits of one already existing deprives the officials of the old organization of any power or authority to control or regulate their departments or work within the limits of the new. The officials duly elected or appointed to perform such duties by the new corporation and representing it are vested with such power and authority.893 § 426. The power to grade highways. Where the authority exists to establish and construct a highway, using the term in its comprehensive sense, the implied power also exists to put and maintain it in a condition fit for public use. Grading is necessary work of this character.s The power to 894 Madison County v. Stewart, 74 Miss. 440; Burgett v. Norris, 25 Ohio St. 160, 20 So. 857; Amerman v. Briggs, 50 N. J. Law, 114, 11 Atl. 423. 891 State V. Shawnee County Com'rs, 28 Kan. 431. The legisla ture has ample power to order the construction of such a road and distribute its cost between the several counties through which it runs. New Haven & N. C. R. Co. v. Hampshire County Com'rs, 173 Mass. 12, 52 N. E. 1076; Paxton v. Arthur, 60 Miss. 832; Dunker v. Stiefel, 57 Mo. App. 379; Kolkmeyer v. City of Jefferson, 75 Mo. App. 678; Clement v. Burns, 43 N. H. 609; Boston & M. R. Co. v. Folsom, 46 N. H. 64; Stearns v. Hinsdale, 61 N. H. 433; Warner v. Hoagland, 51 N. J. Law, 62, 16 Atl. 166; In re Board of Public Works of Watertown, 144 N. Y. 308. 892 People v. Village of Haverstraw, 47 N. Y. State Rep. 891, 20 N. Y. Supp. 7; Mechem on Public Officers, §§ 511 et seq. 893 People v. Chicago & N. W. R. Co., 118 Ill. 520; Cassidy v. City of Covington, 12 Ky. L. R. 980, 16 S. W. 93; following Maddux v. City of Newport, 12 Ky. L. R. 657, 14 S. W. 957; King v. City of Lewiston, 70 Me. 406; Eaton v. Middlesex County Com'rs, 73 Mass. (7 Gray) 109; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S. W. 943; Bisher v. Richards, 9 Ohio St. 495. 894 Emery v. San Francisco Gas Co., 28 Cal. 345; Thompson v. Hoge, 30 Cal. 179; Meuser v. Risdon, 36 Cal. 239; Chase v. Sheerer, 136 Cal. grade a street is generally held a continuing one895 although there are authorities to the contrary.896 This principle will not affect the discussion of the subject in this section of the right of a property owner abutting upon the highway to recover damages in case of the re-exercise of the power. In jurisdictions where the power is not held a continuing one, the establishment and making of a grade as between the corporation and the abutting property owner partakes of the nature of a contract and if the grade is substantially changed, or re-established to his damage, this can be recov 248, 68 Pac. 768; Spaulding v. North San Francisco H. & R. Ass'n, 87 Cal. 40. The power, however, can only be exercised under the conditions provided by law. Spaulding v. Wesson, 84 Cal. 141; City of Norwich v. Story, 25 Conn. 44; City of Leavenworth v. Casey McCahon (Kan.) 124; Inhabitants of Acton v. York County Com'rs, 77 Me. 128; Burns v. City of Baltimore, 48 Md. 198. The grant of a general power to grade and pave streets for the public convenience and the benefit of the whole city does not convey the power to improve a street where such improvement will not result in a special benefit to property in the immediate locality. Althen v. Kelly, 32 Minn. 280; Yanish v. City of St. Paul, 50 Minn. 518, 52 N. W. 925. The power to establish the grade of streets is of a discretionary character and in its exercise under peculiar conditions the grade on one side may be on a materially different level from that on the other. Bergen Neck R. Co. v. City of Bayonne, 54 N. J. Law, 474, 24 Atl. 448. But the municipality can only proceed in the manner required by its charter. Malone v. Jersey City, 28 N. J. Law (4 Dutch.) 500. The terms "grading and paving" include the incidental details of the work. Latta v. City of Hoboken, 48 N. J. Law, 63; Borough of Steelton v. Booser, 162 Pa. 630, 29 Atl. 654; White v. Borough of McKeesport, 101 Pa. 394. 895 Smith v. City of Washington, 20 How. (U. S.) 135; City of New Haven v. Sargent, 38 Conn. 50; Markham v. City of Atlanta 23 Ga. 402; Dunham v. Village of Hyde Park, 75 Ill. 371; Macy v. City of Indianapolis, 17 Ind. 267; Kemper v. Campbell, 45 Kan. 529, 26 Pac. 53; Karst v. St. Paul, S. & T. F. R. Co., 22 Minn. 118. "The right to establish a grade in the sense of determining what the grade shall be is clearly implied and included in the general authority to make, grade, repair and improve streets. Upon the exercise of this power the charter imposes no limitation and there is, therefore, no reason why it should not be regarded as a continuing power-that is to say, a power which is not exhausted-with reference to a particular street or portion thereof, by its first exercise in establishing the grade of such street or portion, but notwithstanding such first exercise, may again and as often as the public good requires, be exercised anew, though the result be to change a previously established grade." 896 Oakley v. Trustees of Williamsburgh, 6 Paige (N. Y.) 262. |