firm it.51 The report [ý 109] (bb) Formal Requisites. should be carefully prepared not only as to substance, but also as to form,52 and ordinarily should be in writing,53 under the hands and seals of the board or a majority thereof.54 [110] bb. Presence of Commissioners, Viewers, Etc. The statutes, and, therefore, the cases, are not in accord as to whether the report should show that all or a majority of the viewers or surveyors were present at the view or survey.55 trees growing thereon, agreeably to tive. Durham's App., 117 Me. 131, St. (1802) c 135, the court will not 103 A 9. presume that any wood was growing on the land, and will not quash the location for any such alleged omission. Com. v. Westborough, 3 Mass. 406. ters not referred to.47 So the presumption is that [f] Swearing of viewers. The report should state whether the viewers were severally sworn or affirmed. In re Herrick, etc., Tps. Road, 16 Pa. Super. 579. 48. In re Melon St., 182 Pa. 397, 38 A 482, 38 LRA 275; In re South Abington Tp. Road, 109 Pa. 118; In re Derry Tp. Public Road, 11 Pa. Super. 232. [c] Variance in name.-The fact that the initial letter of the second christian name of one of the viewers is omitted in making the order of appointment, but is inserted in the signature to the report, will not warrant the setting aside of the report. In re South Abington Tp. Road, 109 Pa. 118. [d] Report by deputy-(1) Under 49. See statutory provisions. the act of Febr. 24, 1873, providing [a] In New Jersey, it is held that a surveyor is to be appointed that the return must show upon its for Allegheny county with authority face a compliance with all the ma- to appoint a deputy to perform his terial directions of the statute. duties, the surveyor to act as artist State v. Yauger, 29 N. J. L. 384; on road views, a report signed by State v. Lippincott, 25 N. J. L. 434; the deputy surveyor is authorized Bassett v. Clement, 17 N. J. L. 166; where viewers were appointed, the Ex p. Shough, 16 N. J. L. 264; Gris- county surveyor being named as one com v. Gilmore, 16 N. J. L. 105; State without designating his office. In re v. Van Geisen, 15 N. J. L. 339; State Killbuck Private Road, 77 Pa. 33. v. Scott, 9 N. J. L. 17. (2) Where the county engineer is [g] Change of circumstances 50. In re Manchester Tp., etc., authorized to employ a deputy, and since discontinuance of previous Road, 8 York Leg Rec (Pa.) 169. such deputy has the same power as road. The report of commissioners 51. In re West Lampeter Tp. his chief, his report in proceedings laying out a highway over a road Road, 16 Pa. Dist. 401. to establish a road, signed by his that had previously been discon52. In re Tionesta Tp. Road, 44 own name, is sufficient as if made tinued need not state any change of Pa. Co. 685. by the county engineer. State v. circumstances as having occurred [a] Title. Where a title written Clarke County Super. Ct., 49 Wash. after the discontinuance. Hopkinton at the head of a report of view- 392, 95 P 488. (3) On a petition for v. Winship, 35 N. H. 209, 216 (where ers is not the real title of the viewers to lay out a road, the court the court said: "Upon a petition for proceeding, and the real title indi-appointed D, T, and B. The report the laying out of a highway, the cating the proper length of the view of the viewers was signed by S and statute requires no examination or appears in the body of the report, the latter two. After the report report by the commissioners, as to and in the notices and other papers had been confirmed absolutely, and any change of circumstances that attached to the report, the court will an order to open issued, a petition may have taken place since the dis-disregard the title at the heading, to set aside the confirmation and continuance of a highway upon that although such title may have been admit exceptions was presented. A route. The question for them to ambiguous, misleading, or incorrect. certificate was then filed by D, who examine and report upon is, whether In re Carlisle St., 55 Pa. Super. 223. was county engineer, to the effect the public good requires the road 53. Herron v. Carson, 26 W. Va. that S was the duly appointed deputy to be laid out; and it is only upon 62 (although it would be more engineer, and was deputed by him to petitions to discontinue highways formal for a committee appointed to survey and locate the road. It was that the commissioners are required view a proposed road to return their held that it sufficiently appeared that to report whether any change of cir- report in writing, yet if it was not the persons who signed the report cumstances has taken place"). reduced to writing and signed by were the persons contemplated and [h] Hearing complaints.-(1) A each member, but, in lieu thereof, authorized by law to act as viewers, report of the commissioners need the whole report, containing all the and that the objection that the cernot recite that they heard com-the details required by the statute, tificate was not filed by leave of plaints, as required by Rev. St. is set out at length in the order book court would not avail after the time 87799. Spurgeon v. Bartlett, 56 Mo. of the county court in the form of a for exceptions had elapsed. Re VerA. 349. (2) A recital in a report that recital, and an order of the court is ona Borough Road, 9 Pa. Cas. 114, the commissioners, after due notice made on such recital, it will suffice). 12 A 456. to all parties in interest, heard all 54. Ind.-Griffin V. Pearce, 187 [e] In Indiana, there being but the testimony offered as to damages, Ind. 287, 119 NE 8. two viewers provided in the statand thereon assessed such damages, Me.-Durham's App., 117 Me. 131, ute as to establishment of free sufficiently shows that the commis- 103 A 9; In re Vassalborough, 19 Me.gravel roads, they must concur in sioners heard "complaints" as re-338. quired by Rev. St. § 7799. Spurgeon Mass.-Com. v. Coombs, 2 Mass. v. Bartlett, 56 Mo. A. 349. Report as to: Notice of proceedings see supra 47. Campbell v. Fogg, 132 Ind. 1. 31 NE 454; Com. v. Westborough, 3 Mass. 406; Spurgeon v. Bartlett. 56 Mo. A. 349; In re Drumore Tp. Road, (Pa.) 7 A 193; In re South Abington Tp. Road, 109 Pa. 118; In re Union Tp. Road. 17 Pa. Co. 39. 489. Pa. In re Greenwood Tp. Road, 27 Wash.-State V. Clarke County any report made in order to render such report effective, and when they do concur their report is not affected by the dissent of the engineer. Griffin v. Pearce, 187 Ind. 287, 119 NE 8. 55. See statutory provisions; and cases infra this note. [a] Where two of the viewers have signed the report (1) the fact [a] In Illinois, where a report is that the third viewer does not sign signed by two only of three viewers it until the return day does not of a road, it will be presumed that vitiate the report. In re Greenwood the third was present and consultTp. Road, 27 Pa. Super. 549. (2) Ining, until the contrary is shown. any event the fact that only two out Galbraith V. Littiech, 73 Ill. 209; of three viewers signed the report is Louk v. Woods, 15 Ill. 256. [a] Illustrations.-(1) When the not a ground for setting aside the [b] In Kansas it is sufficient that report of the viewers is silent con- proceedings three years after the a road report shows that two of the cerning an "inclosure" found on the final confirmation of the report and viewers and the surveyor attended line of a proposed road, it will be pre-after the road had been opened and in accordance with "the order of the sumed that there is none, or that the public money expended thereon to a county board fixing the time for Owner has given the consent re- considerable amount. In re Union their meeting and that they proceedquired. Crossley v. O'Brien, 24 Ind. Tp. Road, 29 Pa. Super. 573. ed to review the route named in the 325, 87 AmD 329. (2) If the report [b] A report of the proceedings petition," and "caused the route of a locating committee allows no of the commissioners of two located by them to be noted by certime for the owners of the land, counties in relocating an ancient tain marks," although it does not over which a highway is to be laid. way signed by only one board of appear that the third viewer was to take off the wood, timber. and commissioners is not fatally defec-ever notified or attended, the law no HIGHWAYS [111] cc. Necessity, Utility, Convenience, and etc.. In 58. 57 a to [29 C. J.] 443 com word sary.56 It is sometimes required, however, that the report should contain statements as to the necessity or utility 58 of the proposed road, the public advantage and private inconvenience thereof,59 and where notice requiring proof of service of | tablishment of free gravel road to 16 Ky. Op. 414. its character, as whether it is a town or private ard v. Cross, 8 Kan. 248. to be filed or recorded. Ven-file written report of conclusions, as [c] return In New Jersey (1) where the § 7712 et seq, could not affect report [1879] c 128 § 6) provided that no required by Burns St. Annot. (1914) ter of a bridge company (Priv. L. [c] In Maine (1) where the charthan all the surveyors, it should ap- would not be of public utility, the be located leading from such bridge of a road is signed by less of pear that the others either met with engineer not being a viewer within two viewers that improvement way should at any time thereafter them Griscom v. Gilmore, 16 N. J. L. 105; or had notice of the meeting. the statute. State v. Van Geison, 15 N. J. L. 339; Griffin v. Pearce, 187 for Ind. 287, 119 NE 8. State a certain place, which shall be the v. Burnett, 14 N. J. L. 385. Comr., 83 Mich. 193, 57. necessary (2) A return by road surveyors must Cowing v. Ripley, 76 Mich. 650, 43 committee adjudged the way to be Cox v. Hartford Tp. Highway thereof be defrayed by such such company, unless the entire cost convenience of show that an notice of their meeting, or such no- 160, 41 NW 885; In re Upper St. but they must also adjudge, after absent surveyor had NW 648; Truax v. Sterling. 74 Mich. a common convenience and necessity, 47 NW 122; pany, it was not sufficient that the tice must appear by proof laid be-Clair Tp., etc., Road, (Pa.) 7 A 772; due notice to the bridge company, fore the court. 17 N. J. L. 166. Bassett v. Clement, by four out of a board composed of (3) A return signed 39. In re Union Tp. Road, 17 Pa. Co. whether the way would be a necessix, reciting that on the appointed statement by the viewers that "after under Acts (1832) c 42, requiring day [a] Finding held sufficient. two of them met, and, on due due sary convenience to the proof that proper notices were given, quiry, as to necessity for said road" for the laying out of the road to ad-A Shattuck's App.. 73 Me. 318. company. adjourned, consideration and diligent in-county commissioners in proceedings (2) But showing the required proof to have of the petitioners should be granted," convenience and necessity," it is sufis insufficient as they been made before less than a ma- and have, therefore, located and do ficient if they find it of "convenience "are of opinion the jority. State v. Hall, 17 N. J. L. 374. recommend for public use a certain prayer judge the road to be of "common [d] In Pennsylvania (1) some of road, was held to be a the cases hold that the road viewers' finding of the necessity of the road. 9. report should state particularly who In re Sterrett Tp. Road, 114 Pa. 627, evidence that a road laid out by the and necessity," omitting the substantial "common." of them were present at the view. 7 A 765. Cushing v. Gay, 23 Me. In re South Abington Tp. Road, 109 (3) Under St. (1821) c 118, the Pa. 118; In Road, 16 Pa. Super. 579; In re Union re Herrick, etc., Tps. basis of the report should be stated. more individuals in it, is the ap[b] The facts which formed the fit of the town, or of some one or selectmen of a town is for the beneTp. Road, 17 Pa. Co. 39; In re Clin- Dist. 541. In re ton Tp. Road, 3 Pa. Co. 170. Columbus Tp. Road, 13 Pa. proval and allowance of it by the However, a report signed by all the A. 302, 53 P 771 (2) viewers, Butts v. Geary County, 7 Kan. county commissioners on appeal, and town stating at a legal meeting or of the viewed," is a sufficient averment as highway under Gen. St. [1889] c 89 that they "had are appointed on a petition for (where viewers to who were present at the view. § 29, before the board of commisthe selectmen, therefore, need not In re Ross Tp. Road, 36 Pa. 87. state that fact in their report. Other cases hold that it need not port, and direct the highway to be statute that the surveyors shall so (3) sioners can prove the viewers' re-out a road, the requirements of the re Limerick, 18 Me. 183. In appear on the face of the report that located and opened, it must appear lay it "as may appear to them to [d] In New Jersey (1) in laying all the viewers were present at the therefrom that the road proposed is be most for the public and private view. In re Springbrook Road, 64 practicable and of public utility); convenience," and "in such a manner Pa. 451; In re Middle Creek Road, 9 Pa. 69; In re Road Fishery to McCall's Ferry, 13 Serg. road should decide upon its utility or and from Cully's committee appointed re Marsh, 2 Aik. (Vt.) 239 & R. 25; In re Ewing's Mill Road, 32 inutility). (a as to do the least injury to private to survey Pa. 282. a property," are matters of substance, (4) The names of the absent the jurors return need 59. Greenleaf Ct. Case, 4 Whart. (Pa.) show that the road described in the convenience was regarded, but says of the not be See statutory provisions. must show a compliance with them. surveyors stated. [a] 514. In Alabama the record must (2) If the return shows that public State v. Lippincott, 25 N. J. L. 434. (5) If it appears that five of order of the court was viewed and nothing about private convenience, the six viewers signed the report it is immaterial greatest advantage to the public, and that the latter was disregarded, and were present and marked whether the sixth was absent or be- with as little prejudice to individuals the return will be set aside. out by the jury "to ing present refused to sign. the the omission raises the presumption New Hanover Tp. Road, 18 Pa. 220. In re as possible, and without partiality or 56. Humboldt County more, 75 Cal. 604, 17 P 710; Camp-mark out the best route for the said (Road Laws 1903), § 20, to locate a favor;" and where the order of the Dins- court directs the jury "to view and proceedings under L. (1903) p 269 v. Lippincott, 25 N. J. L. 434. State bell v. Fogg, 132 Ind. 1. 31 NE 454; road," and they report that. "being public road from petitioner's resi[e]] In Oregon the Heagy v. Black, 90 Ind. 534; In re duly viewers, in Limerick, 18 Me. 183. [a] In Indiana (1) under Rev. St. in before "performed the duty assigned them required by law to locate the road acting," they dence to another public road, being $5016, which imposes on viewers the ability, without partiality or favor," where this fact appears from their the order to the best of their duty to ascertain whether a high- this is not a way will be of "public utility," and with the statute. as to do the least to "locate and mark" it "on the best County Comrs.' Ct., 26 Ala. 568. sufficient compliance report, it is not necessary that the damage,' ground," and under § 5017, providing Keenan v. Dallas report show that for a report by such viewers giving of road viewers must state the pub-County, 46 Or. 546, 81 P 240. [b] In Kentucky (1) a description of such location "by lic and private conveniences to by them is on the most accessible the road located the report or desirable route. metes and bounds," their report that sult from the proposed road (Soaper (1882) No. 14, providing that comKemp v. Polk they have "proceeded mark and locate said proposed public Wood v. Campbell, 14 B. Mon. 422; highway may to review. [f] In Vermont v. Kimsey, 144 Ky. 32, 137 SW 797; missioners appointed to lay out a (1) under Acts highway," with a description of the Winston v. Waggoner, 5 J. J. Marsh. road, is sufficient, and they are not required to state therein 41: Fletcher v. Fugate, 3 J. J. Marsh. make road will be of public utility, and is Abney their decision that the 631; Foreman v. Allen, 2 Bibb 581; to lay out the road conditional upon located on the best ground. payment by petitioners, especially bell v. Fogg, 132 Ind. 1, 31 NE 454. Bibb 514; Mitchell v. Baker. 7 Ky.a V. Barnett, Camp- Daveiss v. Hopkins County Ct.. 1 of laying out and building the road, to be benefited, of such sums as they 1 Bibb (2) Where the report of viewers ap- Op. 24; Peak v. Williams, 6 Ky. Op. decision by the commissioners that 557; may think proper toward the expense pointed to locate a public road is 414) (2) and state them specifically the convenience of individuals and favorable, but is silent report showing an unconditional public utility of the location, or it Peck as to the (Wood v. Campbell, 14 B. Mon. 422; the public good required the road to does not state that the location is of Foreman v. Allen, 2 Bibb 581). public utility, it will be presumed Where viewers, in their report, show nience and necessity is made condiWhitney, 6 B. Mon. 117; be laid out, is not affected by the that they deemed it of public utility. that the closing of the road would tional upon the payment of part of Heagy v. Black. 90 Ind. 534. fact that the decision as to conve. Where a remonstrance against a pro- person, they should show in their fited, but who did not sign the peti(3) be of some disadvantage to a named posed highway includes the ground report whether of damages and the inutility of the tinuance of the road would cut him the expenses by one who was beneproposed road it cannot be objected off from a public highway, or in- whose expense it was built. or not the discon- tion, although he agreed to make the that the reviewers exceeded authority in reporting the highway travel to reach a highway, or state 1041. their crease the distance he would have to cock v. Worcester, 62 Vt. 106, 18 A payments, as it is immaterial of public utility. at 86 Ind. 377. Brown v. Stewart, Han(4) Failure of engineer their opinion that he would be sub-ner as to protect a railroad will not the facts to whom board of commissioners of jected to inconvenience by the clos- be set aside if it imposes no addiupon which they based laying out a highway in such man(2) A report of commissioners county referred petition seeking es- ing of the road. Peak v. Williams, 'tional burden upon defendant town, V. sworn V. re (3) "So Or- Ind. 241. cated with reasonable certainty,66 and small errors and omissions not affecting the certainty of the location may be regarded as immaterial.7 The report does not require the accuracy of a deed.es It is the duty of viewers of a road to describe the route laid out for the road by metes and bounds, and the termini must be fixed with reasonable certainty,70 by some visible object, sufficient to deter Ky-Waller v. Syck, 146 Ky. 181, the error being only formal. 69 J. L. 516; State v. Emmons, 24 N. J. L Or. Rice v. Douglas County, NYS 93 Pa.-In re Moyamensing Road, 4 Serg. & R. 106; Re Verona Borough Road. 9 Pa. Cas. 114, 12 A 456; In 26 Pa. re Cornplanter Tp. Road, etc.. Super. 20; In re Herrick Tp.. Road, 16 Pa. Super. 579; In re West Lampeter Tp. Road, 16 Pa. Dist. 401; In re East Earl Tp. Road, 10 Lanc LRev 340. Tex.-Currie v. Glasscock County, (Civ. A.) 183 SW 1193; Ross v. Velt [a] Sufficiency of statement.-(1) N. D.-Semerad v. Dunn County, A report of viewers that they have 35 N. D. 437, 440, 160 NW 855 [cit laid out a road for public use is a Cye]. sufficient compliance with the order Pa.-In re O'Hara Tp. Road, 152 to state whether it is deemed neces- Pa. 319, 25 A 602; In re Bean's Road, sary for a public or private road. 35 Pa. 280; In re Hector Tp. Road, In re Norriton Tp., etc., Road, 4 Pa. 19 Pa. Super. 124; In re Mt. Pleas-mann, (Civ. A.) 161 SW 1073. 337. (2) So it is a sufficient adjudi-ant Road, 22 Pa. Dist. 765; In re cation that the road is a public one Yardley Borough, 22 Pa. Co. 179; if the viewers say they lay out the In re Union Tp. Road, 17 Pa. Co. 39; road for public use. In re App's In re Cheltenham Tp. Road, 3 Montg. Travern Road, 17 Serg. & R. (Pa.) Co. 37; In re Abington Tp. Road. 2 388. (3) A report by viewers that Montg. Co. 92; In re Windsor Tp. they had laid out and "do return for Road, 10 York LegRec 185. public use the following road" was sufficient, as showing that it was necessary for a public road. In re West Hempfield Tp. Road, 4 Lanc Bar (Pa.) 7. (4) It is not a sufficient exception to the report of a jury of review in the case of a street that it does not state whether the street is necessary for a public or a private road, where the report adopts and confirms the record of the first jury, in which the street is laid out as a public one. Greenleaf Ct. Case, 4 Whart. (Pa.) 514. 62. Pierce v. Southbury, 29 Conn. 490; In re Upper St. Clair Tp., etc., Road, (Pa.) 7 A 772, 8 Pa. Cas. 470, 11 A 625. N. B.-Boyington v. Holmes, 5 N. "Their return should set out the road in its whole length with such precision, that the land-holder, as well as he or they who have occasion to open or use it, may have no difficulty in ascertaining where they have a right to travel, or where they would be trespassing." Griscom v. Gilmore, 16 N. J. L. 105, 106. [a] "The means of identifying [a] Description held sufficient.the road must be found on the re- Lake Erie, etc., R. Co. v. Shelley, 163 port. There must, therefore, be cer- Ind. 36, 71 NE 151; McDonald v. tainty in the description, at least so Payne, 114 Ind. 359, 16 795: NE much certainty that the description Mossman v. Forrest, 27 Ind. 233; will not answer equally well for two Merom Gravel Co. v. Pearson. 33 Ind. distinct roads. The court has no aul- A. 174, 69 NE 694, 71 NE 54; Rochthority to confirm a report, and or-ester v. Sledge, 82 Ky. 344, 6 KyL der a road to be opened where there 235; Garrett v. Hedges, 17 SW 871, is nothing upon the record to fix its 13 KyL 647; Dartmouth V. Bristol location." In re Crescent Tp. Road, County, 153 Mass. 12, 26 NE 425; 18 Pa. Super. 160, 164. Hallock v. Woolsey, 23 Wend. (N. Y.) 328; Woolsey v. Tompkins, 23 Wend. (N. Y.) 324; Currie v. Glasscock County, (Tex. Civ. A.) 183 SW N. J. L. 332; State v. Schanck. 9 N. J. L. 107; Clarke v. South Kingstown, 18 R. I. 283, 27 A 336; Currie v. Glasscock County, (Tex. Civ. A.) 183 SW 1193. [b] Alteration of report after filing. Where objectors in highway opening proceedings claimed that the description in the viewers' report 1193. [a] Illustrations.-(1) Where the was written after the report had [b] Description held insufficient. report of a committee stated that been filed, and without the viewers'-A description, in a viewers' rethey found that a certain part of knowledge, and that the report was port, of the terminal and interme the road prayed for was not required insufficient for want of a description, diate points of a proposed road, is by common convenience and neces- the burden was on the objectors to insufficient to meet the requirements sity, and that they were of opinion prove such fact in the commission- of the statute, where it is so indefithat that portion of the petitioners' court. Merom Gravel Co. v.nite that a stranger, even with the should not be granted, but that they Pearson, 33 Ind. A. 174, 69 NE 694, aid of compass and chain, could with found that a certain other portion 71 NE 54. difficulty, if at all, certainly deterought to be laid out, and that they, [c] Township.-(1) The return of mine the true location. Beck v. Bigtherefore, laid it out, it was suffi- surveyors must designate the town-gers, 66 Ark. 292, 50 SW 514. ciently found that the latter portion ship or townships in which the road 67. Carr v. Berkley, 145 Mass. 539. was required by common conveni-laid out is located. State v. Cake, 14 NE 746; Oxford Tp. v. Brands, 45 ence and necessity. Pierce v. South-24 N. J. L. 516. (2) But it is not bury, 29 Conn. 490. (2) A report by necessary to show at what point viewers that "after due consideration the road crosses the township line. and diligent inquiry as to the neces- State v. Cake, 24 N. J. L. 516. sity for said road, they are of [d] In New York, commissioners opinion that the prayer of the peti-appointed to lay out a highway untioners should be granted, for the der 84 of the Highway Law are reasons set forth in their petition," not required to incorporate a deand "have therefore located and dis- scription thereof in the certificate of tinctly marked upon the ground, and their decision. Matter of Wagstaff, do recommend for public use the fol-129 App. Div. 591, 114 NYS 226. lowing described road," etc., is suffiGreer v. Lake, 186 Ind. 67, 114 cient. In re Upper St. Clair Tp., etc., NE 961; Rose v. Garrett, 91 Mo. 65, Road, 8 Pa. Cas. 470, 11 A 625. (3) 3 SW 828; In re Franklin Tp. Road, A report of viewers which states 4 Pa. Dist. 417. that "they laid out the road for public use," and that, "in their opinion it will fully answer as a public road, and will accommodate the traveling public," is a sufficient finding that the road is necessary. In re Versailles Tp. Road, 4 Brewst. (Pa.) 57. 63. Variance between report and petition as to: Length see infra § 134. 64. Ark. Beck v. Biggers, 66 Ark. 292, 50 SW 514. 65. 66. Conn.-Windsor Conn. 279. V. Field, 1 68. Currie V. Glasscock County, (Tex. Civ. A.) 183 SW 1193. 69. Campbell v. Fogg, 132 Ind. 1, 31 NE 454; Phillips v. Tucker, 3 Metc. (Ky.) 69. 70. Craig v. North, 3 Metc. (Ky.) 187: Phillips v. Tucker, 3 Metc. (Ky.) 69; Jacoby v. Neal, 8 Ky. Op. 647: State v. Woodruff, 36 N. J. L. 204; Ex p. Shough, 16 N. J. L. 264; In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Springfield Road, 73 Pa. V. 127; In re Lower Merion Road, 58 Pa. 66; In re Bean's Road, 35 Pa. 280; In re Derry Tp. Public Road, 11 Pa. Super. 232; In re Salisbury Tp. Road, 19 Pa. Dist. 1120; In re Union Tp. Road. 17 Pa. Co. 39; In re Lehman T. Road, 1 AmLJ (Pa.) 321; Ir re Cheltenham Tp. Road, 3 Montg. Co. (Pa.) 37; In re Windsor Tp. Road, 10 YorkLegRec (Pa.) 185. Ind.-Lake Erie, etc., R. Co. Shelley, 163 Ind. 36. 71 NE 151; Brown v. Stewart, 86 Ind. 377; Mossman v. Forrest, 27 Ind. 233; Merom Gravel Co. v. Pearson, 33 Ind. A. 174, 69 NE 694, 71 NE 54. Ky-Rochester v. Sledge, 82 Ky. 22 SW 82, 15 KyL 6. Ind.-Campbell v. Fogg, 132 Ind. 1, 31 NE 454; Shute v. Decker, 51 N. J.-State v. Cake, 24 N. J. L. "The termini of a projected road are its designated and only means of identification. It is by these points it is docketed and indexed. mine their exact locality," and the courses and distances should be given,72 although courses will be controlled by monuments.73 A description of the center line of the road, accompanied by a statement showing its width, is sufficient.74 In determining the sufficiency of the description, the whole. report must be considered.75 The report may receive support by reference to the petition or order,76 or to a map or plat." Where, however, the report discloses illegality on its face, it cannot be aided by the map.78 Width of highway. Where the statute fixes a width, it need not be stated in the report or re turn,79 unless there is an express requirement to that effect.80 Grade of road. In some jurisdictions the grade of the road should be stated in the report;81 in others this is not necessary.82 83 [113] ee. Owners and Improvements. Under some statutes, the names of the owners of the lands over which the proposed road runs must be stated in the report,8 if such names are known;84 if they are unknown, a certification of that fact must be made.85 All that is required is that the viewers shall report in good faith the apparent ownership of the land; they need not adjudicate the title State v. Cake, 24 N. | proper description of the land taken of the exceptant, as the basis of their estimate of damages, is fatal to the report. In re Franklin Tp. Road, 4 Pa. Dist. 417, 16 Pa. Co. 276. or 80. Hayes v. Shackford, 3 N. H. 10; Matter of King, 42 Misc. 480, 87 NYS 236; Matter of Feeney, 20 Misc. 272, 45 NYS 830; Boyington V. Holmes, 5 N. B. 74. 81. In re Yardley Borough, 22 Pa. Co. 179; In re Union Tp. Road, 17 Pa. Co. 39. In (2) And if the viewers fail to de- in the recital. scribe the termini of the road as J. L. 516. viewed and located it is fatal. 76. In re Redmond, 105 NYS 936; They are the initials which describe In re Hilltown, etc., Road, 2 Del. Co. the proceeding, and limit the author- (Pa.) 480. But see Lake Erie, etc., ity delegated by the court in its R. Co. v. Shelley, (Ind. A.) 67 NE order to the viewers. To go beyond 564 (where the record did not show them is to exceed the authority. that the order was attached to When once the viewers cut loose made a part of the report, and it did from the order and go outside of it, not appear as a part of the report). the whole identity of the proceeding 77. Mowbray v. Allen, 58 N. J. L. is lost." In re Lower Merion Road, 315, 33 A 199; Carpenter v. Brown, 58 Pa. 66, 67 [quot In re Crescent 53 N. J. L. 181, 20 A 738; In re SeTp. Road, 18 Pa. Super. 160, 164]. wickley Tp. Road, 23 Pa. Super. 170; [a] In Pennsylvania (1) the act Clarke v. South Kingstown, 18 R. I. of June 13, 1836, (Purdon Dig. p 1496 283, 27 A 336. See In re Hector Tp.pl 3) does not require that the viewRoad, 19 Pa. Super. 124 (where there ers appointed to lay out a public was nothing in the plat or draft to road shall state in their report the aid the report). But see Greer v. elevation of the proposed road. Lake, 186 Ind. 67, 72, 114 NE 961 re Drumore Tp. Road, 7 A 193. ("For the purpose of determining "In the absence of the record showwhether or not there was a declara-ing to the contrary, it will be pretion of an intention to appropriate sumed that, 'whenever practicable,' any part of his land, a party inter- the road was laid at a proper grade." ested would be required only to ex- In re Drumore Tp. Road, 7 A 193; amine the report of the viewers and In re Drumore Tp. Road, 3 LancL a notation endorsed on the profile Rev 222. (3) But under the act of prepared by the engineer would be March 2. 1854, providing that no no notice to him of such intention road shall be laid thereunder unless even though it were in proper form it can be graded at an elevation of and otherwise sufficient"). not made than five degrees from the plane of the horizon, or be easily reduced to that elevation, it was error to confirm a report of viewers where it did not appear in the report or draft, or any part of the record, that the road could be graded as required. In re Cussewago Tp. Road, 3 Brewst. (Pa.) 190. [a] "At or near." (1) A description of a terminus as being on a certain road near a certain house or building has been held to be sufficient. Blakeslee v. Tyler, 55 Conn. 387, 11 A 291; Vogle v. Bridges, 22 SW 82, 15 KyL 6. (2) But the contrary has also been held. De Long V. Schimmel, 58 Ind. 64; State v. Woodruff, 36 N. J. L. 204; Ex p. Shough, 16 N. J. L. 264; Griscom v. Gilmore, 16 N. J. L. 105; In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Union Tp. Road, 17 Pa. Co. 39. (3) "To designate a terminus as 'near' a division line or building or gate or any other point or place is not sufficient." In re Union Tp. Road, 17 Pa. Co. 39, 41. (4) "Neither is it sufficient to describe termini as between two given points or places." In re Union Tp. Road, 17 Pa. Co. 39, 41. 71. Phillips V. Tucker, 3 Metc. (Ky.) 69. [a] Reversing courses- Where the only mode of determining the beginning point is by reversing the courses as run by the surveyor, the report is insufficient. Phillips v. Tucker, 3 Metc. (Ky.) 69. "The draft annexed to the report is properly a part of it, and is to be considered in determining as to the sufficiency of the designation of the termini.” In re Hector Tp. Road, 19 Pa. Super. 120, 123. [a] Omission of width.-That the width of a proposed highway is not indicated in the report of the coun- 82. Tench v. Abshire, 90 Va. 768, cil committee is immaterial, where 19 SE 779. the width is shown in a plat accom- 83. Cal.-Sacramento County V. panying the report. Clarke v. South Glann, 14 Cal. A. 780, 113 P 360. Kingstown, 18 R. I. 283, 27 A 336. Ky. Morris v. Salle, 19 SW 527, 78. Mowbray v. Allen, 58 N. J.14 KyL 117. Mass.-Com. v. Great Barrington, Where the 6 Mass. 492; Com. V. Coombs, 2 Mass. 489. 72. Tingle V. Tingle, 12 Bush L. 315, 33 A 199. (Ky.) 160; Craig v. North, 3 Metc. (Ky.) 187; Phillips V. Tucker, 3 Metc. (Ky.) 69; Wood v. Campbell, 14 B. Mon. (Ky.) 422; Jacoby v. Neal, 8 Ky. Op. 647; State v. Clark, 1 N. J. L. 261; In re Race St., 8 Pa. Co. 95. 73. Woodman v. Somerset County, 25 Me. 300; In re Knowles, 22 N. H. 361. [a] Illustration. 79. Ind. Campbell v. Fogg, 132 Kan.-Willis v. Sproule, 13 Kan. 257. Ky-Story v. Little, 135 Ky. 115, 121 SW 1023. N. J.-Mt. Olive Tp. v. Hunt, 51 N. J. L. 274, 17 A 291; State v. Oliver, 24 N. J. L. 129. Pa. In re Union Tp. Road, 17 Pa. Co. 39; In re Kingston Tp. Road, 8 Kulp 489. But see Detroit V. Somerset County, 52 Me. 210 (holding that proceedings of county commissioners in laying out a highway will not be quashed because the owners of the land taken are not named). [a] Tenants. Where the report of road viewers gives the names of all the owners of the land over which the proposed road runs, the fact that the name of a tenant under the control of an owner, or cropping on shares, does not appear, will not vitiate the proceeding. Talliaferro v. Roach, 12 SW 1039, 11 KyL 665. 74. Tingle V. Tingle, 12 Bush (Ky.) 160; Peo. v. Redhook Highway Comrs., 13 Wend. (N. Y.) 310; Rice V. Douglas County, 93 Or. 551, 183 P 768. See Hopkins v. Crombie. 4 N. H. 520, 524 (where it is said: "It is believed to be the usual custom in making a record of a highway, to describe Va.-Tench v. Abshire, 90 Va. 768, a line beginning at a particular 19 SE 779. monument, and running from that Wis.-State v. Hogue, 71 Wis. 384, through the whole route to another 36 NW 860. monument, and then to state the [a] In Pennsylvania (1) the viewwidth of the way and to declare the ers cannot fix the width of the road. described line to be the centre of the Maus v. Mahoning Tp., 24 Pa. Super. way"). 624; In re Stowe Tp. Road, 20 Pa. Super. 404; In re Franklin Tp. Road, 4 Pa. Dist. 417. And see In re Aston Tp. Road, 4 Yeates 372 (holding that the breadth of a proposed road returned by the viewers is mere sur-they lived elsewhere, did not invaliplusage). (2) The viewers may suggest, by way of recommendation, the width of the road, but it is the duty of the court of quarter sessions to fix it. In re Bloomsburg, etc., Tps. Road, 11 Pa. Dist. 93. (3) But the omission of the viewers to report the width of the land proposed to be taken for the road, or some other '489. [a] The thread of the road is all that is required to be shown by L. (1917) р 588. Rice V. Douglas County, 93 Or. 551, 183 P 768. 75. Todemier v. Aspinwall, 43 Ill. 401; State v. Cake. 24 N. J. L. 516. [a] Recital. Where the return of the surveyors commenced with a recital, it was held that for the purpose of designating the general locality of the road, the recital might be considered as part of the return, especially where the return contained words of reference to the description [b] Mistake as to residence.-The fact that the return of the surveyors described certain persons to whom awards of damages were made as residents of one town, when in fact date the proceedings of the surveyors. Stokes v. Parker, 53 N. J. L. 183, 20 A 1074. 84. Com. v. Great Barrington, 6 Mass. 492; Com. v. Coombs, 2 Mass. 489. 85. Com. v. Great Barrington, 6 Mass. 492; Com. v. Coombs, 2 Mass. 91 provements in the draft or in the report, the presumption is that there are none.96 Likewise, where no proof is produced that there are any other improvements than those noted, it will be presumed that the viewers performed their duty.97 But this presumption is rebutted by the report of the viewers that they have noticed the improvements, and in such case the omission to note them is fatal.99 [§ 114] ff. Damages and Cost of Road. It is commonly required that the report shall contain a finding as to the damages which would result to property owners from the establishment of the proposed road.99 The viewers have no authority to direct how, when, or by whom the damages shall be paid,1 in the absence of statutory authority, or rule thereto.86 In some states, viewers are also required to note briefly the improvements through which the road may pass.87 The word "improvements" has been held to refer to inclosed fields, and not to barns and houses.88 Elsewhere a broader construction is given to the term, and while mere boundary lines 89 or railroads 90 are not improvements, the term is held to include fences, and buildings, clearings, etc., upon the lands inclosed by them.92 It has been held sufficient if there is a reference to the improvements in either the draft or the report, although the statute provides for its incorporation in the draft.93 Where the viewers fail to note improvements, the report may be sent back for that purpose; but the court is not bound to send it back.95 Ordinarily if there is no reference to imSacramento County v. Glann, | 152 Pa. 319, 25 A 602; In re Sterrett | sess the entire costs and expenses, 14 Cal. A. 780, 113 P 360. Tp. Road, 114 Pa. 627, 7 A 765 (ob-including damages; they should be 87. State v. Hulick, 37 N. J. L.jection too late after confirmation assessed by one set of viewers and 70; State v. Lippincott, 25 N. J. L. of report); In re Race St., 8 Pa. Co.in_one_report. In re Pittsburgh St, 434; State v. Smith, 21 N. J. L. 91; 95; In re Bellevernon Borough Road,4 Pa. Dist. 681, 16 Pa. Co. 478. State v. Hopping, 18 N. J. L. 423; 15 Wkly NC (Pa.) 232. In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Road from Buttonwood Lane to Green St., 13 Serg. & R. (Pa.) 445; In re Bristol Tp. Road, 49 Pa. Super. 549; In re Herrick, etc., Tps. Road, 16 Pa. Super. 579; In re Upper Darby Tp. Road, 15 Pa. Super. 652, 8 Del. Co. 158; In re Mount Joy Tp. Road, 10 Pa. Dist. 490; In re Union Tp. Road, 17 Pa. Co. 39; In re Middletown Tp. Road, 3 Del. Co. (Pa.) 208; In re Kidder Tp. Road, 1 Kulp (Pa.) 10; In re Mass.-Com. v. Coombs, 2 Mass. Bellevernon Borough Road, 15 Wkly NC (Pa.) 232; In re Lower Chanceford Tp. Road, 8 York Leg Rec (Pa.) | A. 349. 165; In re Lower Chanceford Road, 8 YorkLegRec (Pa.) 8. 86. 97. In re Mount Joy Tp. Road, 10 In re Leet Tp. Road, 159 Pa. 99. Cal. Monterey County V. 288. 489. Mo.-Spurgeon v. Bartlett, 56 Mo. [a] The words "Improved Land" written across each of the subdivisions of the land through which the road runs are not a sufficient compliance with the act of June 13, 1836, requiring the improvements to be briefly noted. In re Upper Darby Tp. Road, 15 Pa. Super. 652, 8 Del. Co. 158. 88. State v. Hulick, 37 N. J. L. 70; State v. Smith, 21 N. J. L. 91; State v. Hopping, 18 N. J. L. 423. 89. In re Leet Tp. Road, 159 Pa. 72, 28 A 238. 90. In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Bristol Tp. Road, 49 Pa, Super. 549. 91. In re Leet Tp. Road, 159 Pa. 72, 28 A 238. Wis.-Olson v. Curran, 137 Wis. 380, 119 NW 101. [c] Amount awarded, and par ticular assessment to each owner(1) A report of reviewers finding that damages will be suffered by a certain person but which omits to find the amount of such damages is defective. In re Kingston Tp. Road, 5 Kulp (Pa.) 43. (2) The return of the surveyors should specify the names of all whose lands are taken, and the amount assessed to each, An assessment to "A, B, and others" is bad. Mt. Olive Tp. v. Hunt, 51 N. J. L. 274, 17 A 291; State v. Oliver, 24 N. J. L. 129. [d] Award of lump sum.-Under Pol. Code § 2686, providing that the report of the viewers to the supervisors shall contain "the estimate of the damage to the owner," it was held that as the report was not binding on the owner as to damages, it was sufficient to report a lump sum as the proper amount to be paid. Monterey County v. Cushing, 83 Cal. 507, 23 P 700. [a] In New Jersey.—(1) In laying out a highway over land of anyone not an applicant therefor, the surveyors must certify in their return as to the damages sustained by [e] Land damaged.-Although the such owner. Kearsley v. Gibbs, 44 report of the board awarding dam[b] In Virginia, the provisions N. J. L. 169; Washington v. Fisher, ages on laying out a highway should of the statute making it the duty 43 N. J. L. 377; State v. Runyon, 24 specify all the land which the superof a road commissioner, when di- N. J. L. 256; State v. Garretson, 23 visors consider damaged, it is not rected to view the route of a pro- N. J. L. 388; State v. Cooper, 23 N. necessary to specify all adjacent posed highway, to report specially J. L. 381. (2) Unless the surveyors land which they consider as not bewhether any yard, garden, orchard, were misled by false statements of ing damaged, or with regard to or any part thereof will be taken if such owner himself. State v. Ben- which the benefits may equal the the road is established are directory nett, 25 N. J. L. 329. (3) It is no ex-damages. Olson v. Curran, 137 Wis. only. Jeter v. Board, 27 Gratt. (68 cuse that the surveyors were ig- 380, 119 NW 101. Va.) 910. norant of the law. State v. Everitt, [f] Proportion payable by differ 23 N. J. L. 378. ent townships, etc.-(1) Where a [b] In Pennsylvania (1) under road is laid out in two or more townthe act of June 13, 1836 (general ships, the surveyors must certify the road law), the viewers were not re- proportion of assessment to be paid quired to report damages for the by the several townships in which land taken. In re Franklin Tp. Road, the road is laid out. State v. Can4 Pa. Dist. 417, 16 Pa. Co. 276. (2) non, 33 N. J. L. 218; State v. GarBut the first section of the act of retson, 23 N. J. L. 388. (2) So where May 14, 1874 changes the law in this a road is laid out partly in a townrespect, and provides the way for as-ship and partly in a borough, the 92. In re Leet Tp. Road, 159 Fa.sessing them by the viewers. In viewers must make a separate as72, 28 A 238. re Warriorsmark Tp. Road, 126 Pa. sessment of the damages sustained In re Road from Cully's Fish-305, 17 A 595; In re New Washing- by the respective owners, showing ery to McCall's Ferry, 13 Serg. & R. ton Road, 23 Pa. 485; In re Franklin the amounts to be paid to each by (Pa.) 25; In re Schuylkill Falls' Tp. Road, 4 Pa. Dist. 417, 16 Pa, Co. the borough, if any, and the amounts Road, 2 Binn. (Pa.) 250; In re Que-276; In re Union Tp. Road, 17 Pa. to be paid to each by the township. mahoning Tp. Road, 27 Pa. Super. Co. 39; In re Palmer Tp. Road, 11 In re Greenwood Tp. Road, 23 Pa. 150; In re East Earl Road, 10 LancL WklyNC 429 (holding that the re- Co. 85. (3) But where the return Rev (Pa.) 340. port of viewers must either assess directs the different amounts awarded 94. In re O'Hara Tp. Road, 152 damages to the owners and осси- for damages to the landowners to be Pa. 319, 25 A 602; In re Hempfield | pants of land taken, or return a re- paid by the respective townships Tp. Road, 122 Pa. 439, 16 A 738; In lease of damages). And see In re through which the road runs, it need re Springdale Tp. Road, 91 Pa. 260; Kingston Tp. Road, 8 Kulp 489 not state the aggregate sum to be In re New Hanover Tp. Road, 18 Pa. (holding that, where road viewers paid by each township. Oxford Tp. 220; Pott's App., 15 Pa. 414; In relay a road through land of an owner v. Brands. 45 N. J. L. 332. Towamencin Road, 10 Pa. 195; In re Description of owners entitled to North Franklin Tp. Road, 8 Pa. damages see supra § 113. Super. 358, 43 WklyNC 102; In re Bellevernon Borough Road, 15 Wkly NC (Pa.) 232. See also infra § 125. 95. In re O'Hara Tp. Road, 152 Pa. 319, 25 A 602; In re Bellevernon Borough Road, 15 WklyNC (Pa.) 232. 96. In re Leet Tp. Road, 159 Pa. 72, 28 A 238; In re O'Hara Tp. Road, 93. whose name does not appear on the |