holders.

e town in which they reside, for that purpose, tion of six freevisors shall proceed to lay out, alter, or discony, if, in their opinion, the public good will 2 Wis., 129.

d.1

application that more than the requisite number of persons have of the number are freeholders, and reside in the town, it will be rs whose names are upon the application are not freeholders, or do See Carmel v. Judges of Putnam, 7 Wen., 64.

no authority to proceed and lay out a highway, except upon the site number of freeholders of the town, in writing, and an order ng a highway without such application, would be void.-[See Har607.

road designate the general course desired; the commissioners the e latter may make such variations as they may think proper, proot of such a character as to induce the court to suppose that these garded the preliminary proceedings of the application.-[Hallock were appointed by an act of the legislature, to lay out a road on ble route, commencing at or near a certain village, and the road g at a distance of sixty rods from the village, in a field where there the new road could be connected, and the route, instead of being gible, was, as expressed by the court, strikingly injudicious; yet, acts, the court awarded a peremptory mandamus to the commisthe town, through which the road was laid, to proceed forthwith to d, as laid out by the state commissioners.-[People v. Collins, 19 case that the court would not collaterally review the doings of the d as void the final determination made by them, in the exercise of ment. That the proper way of taking advantage of an error of this ari, or writ of error, if no other mode of appeal is given by statute. sity of setting forth in the application the points of commencement e road, with a degree of certainty that may show clearly the wishes hereby avoid disputes that may thereafter arise.

à New York, that where an application is made to commissioners out a road, they may refuse to act, and should do so, unless, in their n presented to them is regular and in accordance with the requirehey err in their refusal to act, the remedy by mandamus is at hand.P., 13 Wen., 432.

ays, the commissioners before whom the matter is brought, exercise urisdiction, and although it may be presumed till the contrary appear, led legally, yet their acts may be impeached, by showing that they -13 Hill, 458.

supervisors jurisdiction to lay out a highway, it is necessary that the presented to them for that purpose should be signed by six freeholdetition signed by other than freeholders would be utterly nugatory. at in the body of the petition, or application, it is stated that the eholders," &c.; but in order to render the petition competent evidence e the same is called in question, it must be affirmatively shown that eholders. The onus probandi is on the party who seeks to avail himd the proceedings under it.-[ Williams v. Holmes et al., 2 Wis. R., 129. necessary in the first instance to introduce title deeds or documentary erty qualification of the signers. Peacable possession under claim of evidence of seizure in fee, which will be proved by parol, and will be ntrary appears.-[Austin v. Allen, Supreme Court, January Term, 1858. highways upon inducements or considerations, other than the public

I was laid out by selectmen, both because they thought the public good ause G. and F. stated to them, that if they would lay the road, the ke it without any expense to the town; both of which were taken into selectmen in deciding to lay the road,-held by the court, that a laying cements would be clearly illegal.-[ Gurnsey v. Edwards, 6 Porter R., highways partakes of the character of judicial proceedings. It is a v. Richmond, 6 Porter, 232.

of a public highway the public acquire no right to use any trees or n the land, for the purpose of building or repairing the road. The only

Tot to be laid

c., without

SECTION 54.

No public or private road shall be laid out hrough orchard, through any orchard or garden, without the consent of the owner onsent of owner. thereof, if such orchard have been set out two years or more, or if such garden have been cultivated as such two years or more; nor shall any such road be laid out through any buildings, or any fixtures, or erections for the purposes of trade or manufactures, or any yards or enclosures necessary to the use and enjoyment thereof, without the consent of the owner.

When laid withut consent of

wner, damages be appraised. E. A., 1858.

SECTION 55. Whenever any highway shall be laid out through any lands other than those owned by this state, or the United States, without the consent of the owner or owners thereof, the damages sustained by such owner or owners, by reason of the laying out and opening of such highway, shall be ascertained, appraised, and awarded as hereinafter provided.'

Totice of appliation to be made

ors.

-pplicants to erve and post otices, and hat same to Ontain.

SECTION 56. Upon application made to the supervisors for ut by supervi- the laying out, altering, or discontinuing any highway, they shall make out a notice, and fix therein a time and place at which they will meet and decide upon such application; and the applicant shall, at least five days previous to such time, cause such notice to be given to all the occupants of the lands through which such highway may pass, which notice shall be served personally, or by copy left with or at the usual place of abode of each occupant of such lands; and such notice shall also be posted up in three public places in said town, at least ten days before the time of such meeting of the supervisors; every such notice shall specify, as near as practicable, the highway proposed to be laid out, altered, or discontinued, and the several tracts of land through which the same may pass.2

right they acquire in relation to such trees, is that of cutting down and removing to a
convenient distance, for the use of the owner, such trees as it is necessary to remove, in
order to the making or repair of the road in a proper and reasonable manner.-[Baker v.
Shepard, 4 Porter, 208.

A public highway may be created by a long use of land by the public for the purposes of
a highway. But the way, to become public, must be used in such a manner as to show that
the public accommodation requires the way, and that it is the intention of the owner of the
land to dedicate it to the public, for that purpose, and the travel should be confined to the
same place.[State v. Nudd, 3 Porter, 327.

See Gardiner v. Tisdale, 2 Wis., 153.

Supervisors have no jurisdiction in the matter of laying out a highway, which is to be wholly within their town, unless under some express provision of law.-[ Griffin's Petition, 7 Foster, 343.

(1) Land, the private property of the citizen, cannot be taken for a public highway, without compensation.

Open, uncultivated, and unenclosed lands, owned by an individual, are private property within the meaning of sec. 2 of art. xi. of the constitution of Wisconsin, and cannot be taken for public use without just compensation therefor; and such property is protected by the constitution, although the legislature may have made no provision for ascertaining and paying the damages accruing from the appropriation of such property to public use.-[Norton v. Peck, 3 Wis. R., 714.

SECTION 57.

required
f of which
require, sha
shall hear a
at altering.
application a
SECTION 58.
tinue any
ereof to be ma

Under the revised statutes of 1849, no provision was made, in laying out a highway, for assessment of damages to owners of land, except in case of enclosed, improved, or cultivated lands. In the case above cited, the road in question was not laid out through such lands, and no damages were awarded, as it was probably considered unnecessary. The supreme court held that the damages should be assessed before the highway could be opened and worked, although no provision had been made by the legislature requiring such assessment. 2 Form of notice by supervisors of meeting to decide upon application for road.

HIGHWAY NOTICE.

day of

Application having been, on the
18-, made to the
undersigned supervisors of the town of Darien, in the county of Walworth,
by six freeholders of said town, for a highway to be laid out [or altered, or
discontinued] as follows: [here describe the highway, as in the petition, with the
tracts of land over which it is to pass, as therein described.] Notice is therefore

-A very differ
The concluding
Cemination and su
Seanuary term. 1
Far held not to

Karton to the supe
even. that the su
and decide up
2g out a high
lity of the roa 1-
Zurant of proper
eelings void, b
wired their rights
Pa New Hampsh
rare the selecti
Al and must falit
all seem, that w
Red by law, but s
saree of the hear

e required by law;
Then A.. upon the la
e of the hearing, a
alvas illegally laid ou
3. who subsequen
il, could not take
for subverting the

The road was held leg
The parties entitled
ear before them, and
appearance is a wa

e form or sufficienc

1 Form of

e of Wisconsin.

Forth county. William A. Water annexed] notice, 18-, person ribe the land, als ng the lands throu day of

There such notice was

Subscribed and sw

Nor-This affidavit o

eseen, an affidavit is n

proof of a different n

t form from the foregoing is laid down in the Wisconsin Form words of the form there given (p. 238, 4th edition) are, "to make ey of said proposed road;" in the case of Austin v. Allen, decided 8, of the supreme court, the form, as given in the Wisconsin Form be a compliance with the statute, and that such a notice gave no visors to proceed and lay out the highway. The law requires, as pervisors shall fix in the notice "a time and place at which they n such application."

-y, due and proper notice to parties interested is essential to the ritchard v Atkinson, 3 N. H. Rep, 335.

otice to land owners of the laying out of a highway, does not render t voidable only; but cannot be avoided by those who have in any in the premises. The proceedings cannot be avoided by strangers. re.[State v. Richmond, 6 Porter R., 232.

en do not acquire jurisdiction to lay out a road, the proceedings nder all circumstances.-[ Gurnsey v. Edwards, id., 229.

here notice to occupants or land owners is not given in manner h occupants or land owners nevertheless have due notice from any ing, &c., or do actually appear, it will be a waiver of the formal and the proceedings will be good as to them.-[1bid., citing 6 Wen.,

ying out of a highway, was a petitioner for the road, and admitted nd released the land damages to which he was entitled, and the ut by his inducements, held out by him, and by his approval,―held, itly acquired the title of A. to the premises over which the road advantage of the illegality of the laying out, and maintain tressoil.-[Gurnsey v. Edwards, 6 Porter R, 224.

jal as to A. and those claiming under him.

I to notice of the time and place of meeting of road commissioners, d make no objection at the time to the notices or the service of them, iver of all right to notice, and consequently, of the right to object cy of the notices.-[ Guilford's Petition, 5 Foster R., 124.

f affidavit of service, and posting foregoing notice.

order, &c. A., 1858.

d incorporate description of the highway so laid out, altered, or discontinued, and incorporate the same in an order to be signed by them, and shall cause such order to be filed and recorded in the office of the town clerk, who shall note the time of recording the same in the der to be filed record. Such order, together with the award of damages hereinafter mentioned, shall be made out and filed in the office of the town clerk, within three days after the day fixed for deciding upon the application for laying out, altering, or discontinuing such highway; and in case said supervisors shall fail to file such order and award within the three days aforesaid, they shall be deemed to have decided against such application.

d recorded, th award of mages, &c.

le order or
py to be prima

SECTION 59. The order laying out, altering, or discontinuing cie evidence. any highway, or a copy of the record thereof, duly certified by the town clerk, shall be received in all courts and places as competent evidence of the facts therein contained, and shall be prima facie evidence of regularity of all the proceedings prior to the making of such order.

amages may be

SECTION 60. The damages sustained by any person or persons, certained by through whose land any highway shall be laid out or altered, may be ascertained by agreement between the supervisors and such owner or owners; every such agreement shall be reduced to writing, and signed by such owner and the supervisors, and filed in the

reement with

pervisors.

Whereas, upon the application of six freeholders, residing in said town of
Sylvan, for the laying out [or altering, or discontinuing] of a highway herein-
after described, we, the undersigned supervisors of said town, did, on the
day of
-, A. D. 18-, meet at the house of Asahel Savage, in said town,
for the purpose of then and there deciding upon such application, it being the
time and place fixed by us for that purpose; did proceed to examine personally
such highway; and having then and there heard such reasons as were offered
for and against laying out [or altering, or discontinuing] the same, did then
and there decide upon such application, and determine to lay out [or alter, or
discontinue] said highway, as hereinafter described; having, as required by law,
first made out a notice and fixed therein a time and place at which we would
meet and decide upon such application, and the applicant for such highway
having, five days previous to our said meeting, caused such notice to be duly
given to all the occupants of the lands through which said highway passes,
and such notice having, also, been posted up in three public places in said
town, ten days before the time of our said meeting:-it is ordered and deter-
mined, and we do hereby order and determine, that a highway be and the
same is hereby laid out [or that said highway being described as follows, to
wit, is hereby vacated, or that said highway is hereby altered as follows, to
wit:] pursuant to said application; whereof an accurate survey has been
made, which is as follows, to wit:-[here incorporate the survey.] The line of
said survey to be the centre of said highway; and the same is established
rods in width.

day of

GEORGE H. BABB,

In witness whereof, we have hereunto set our hands, this
A. D. 18-.

EMANUEL TAYLOR, supervisors.
OLIVER F. MOORE,

as to the c

d by them. as provide making of t aid supervi ed by them raking such cers will sus way throug therein th

NOTE.-The order of the supervisors, laying out a highway ought always to be full, and should show sufficient to give jurisdiction, and that the law has in all respects been complied with.

A highway must be laid out in conformity with the route described in the petition; otherwise, the doings of the road commissioners will be without authority and invalid.-Cole V. Town of Canaan, 9 Porter's R., 88.

1

Whereas a Ligh

in the coun

-described as

through cert

Now theret

alae received of laying

bed.

ou

witness where A. D. 18

The owner of the soi h the public right o 2. Lamb, 1 Cow.. The grant or laying f soil, remains 11 appropriation of t 4. As a pub e in the owner

in and power to ay and used as aire. See Pritc It seems that the tit ysely for the pur the original owner. The right of way, pu does not divest t

be is entitled to th titled to if it was

Form of agreement a Whereas a high w in the county of mable certainty, w supervisors bea W. Seaton, b

le certainty sors and the sa W. Seaton b

said lands, be li

In witness where

Tento subscribed

R. A., 1858.

; and every such agreement, and every release To be in writing shall forever preclude such owner and all per- and to bar claim for damages. er him from all further claim for damages. If er or owners of lands through which any highway or altered, who shall not agree with the supervipensation they shall receive for the damages susy reason of the laying out or altering such highin this section, and who shall not, previously to e order laying out or altering such highway, deliver s a written release of all claims for damages susreason thereof, said supervisors shall at the time order assess the damages which such owner or in by reason of the laying out or altering such assess damages, their lands, and make an award in writing, spec- with town clerk. e sum awarded by them to each of said owners,

il over which a highway is laid, retains all his rights not incompatible
of way,
and may maintain trespass for cutting timber therein.-[Bab-

238.
out of a highway gives only a right of way to the public: the fee, or
in the original owner, and an action of trespass will lie for any exclu-
the soil.-13 Hill 567; 12 Wen., 98; 14 Johns., 483; 2 Johns., 357: 15
blic highway is a mere easement, and the seizin and right to convey still
of the land over which it is laid out, it is no breach of the covenant
convey contained in the deed, that part of the land conveyed was a
8 such.-[Whitbeck v. Cook, 15 Johns., 483. Held otherwise in New
chard v. Atkinson, 3 N. H. Rep., 335.

itle to the land over which a turnpike road passes is vested in the com-
rpose of a road, and that when the road is abandoned, the land reverts
-[12 Wen., 371.

ublic or private, is but an incorporeal hereditament, an easement which the owner of the fee of the land. The soil is nevertheless the owner's, the same remedies for an injury to his residuary interest, that he would s entire and absolute.-[ Gidney v. Earl, 12 Wen., 98.

to

as to amount of damages upon laying out or altering highway.
way has been laid out by the supervisors of the town of Po-
of Grant, from
-, [describe the road with rea-
which highway is more particularly described by an order of
bearing date, &c.,—and which highway passes through land of
, being known and described as follows [describe the land with
y] Now therefore it is hereby agreed between the said su-
said James W. Seaton, that the damages sustained by the said
n by reason of the laying out and opening said highway upon
liquidated and agreed upon at
dollars.
ereof the said supervisors and the said James W. Seaton have
bed their names, this
day of
A. D. 18-.

If no release given, supervisors to

and file award