or second cause for remonstrance, it shall modify the assessments and equalize the same, and assess the damage as justice may require, and as thus modified and equalized, it shall stand and be adjudged valid. If the assessment on the lands of any appellant is not reduced twenty per cent., or the damages awarded by the boards of commissioners are not increased at least twenty per cent., such appellant shall pay all costs occasioned by such appeal, but if such assessment be reduced more than twenty per cent., or the damages increased more than twenty per cent., then in such cases the appellant shall recover costs and the court shall apportion such costs pro rata upon the lands assessed for benefits: Provided, that the decision of the boards of commissioners as to the fourth and fifth causes of remonstrance shall be final and no appeal allowed therefrom.

8130. Error of proceeding not available. $ 17. No person shall be permitted to take any advantage of any error committed in any proceedings to lay out, construct or improve any road under and by virtue of this act, nor by any error committed by said boards of commissioners, or by the county auditors, or either of them, or by the engineer or surveyor, or other person or persons in the proceedings to lay out, construct or improve such roads, nor of any informality, error, or defect appearing in the record of such proceedings, unless the party complaining is affected thereby.

8131. Compensation of employes. 18. The compensation of persons employed under this act shall not exceed two dollars per day for viewers, chain carriers, and one marker, including actual expenses, except board, for each day actually employed. The surveyor, or engineer, shall not receive to exceed four dollars per day for days actually employed in the discharge of his duties. The auditor shall receive for his services for each one hundred words (five figures counting as one word), the sum of eight cents to be paid out of the proper gravel road or turnpike fund.

8132. Failure of one board to perform. § 19. If the board of commissioners of either county fail, neglect or refuse to comply with the provisions of this act, for the period of sixty days after the filing of said. petition, or notice having been served on such board as herein before provided, then it shall be the duty of the other board of commissioners to lay out or improve such roads, as herein before provided for both said boards to do so, as the same can be done practically.

8133 Road free. § 20. All roads built under the provisions of this act shall be free of toll.

8134. Record of boards' proceedings. § 21. Said boards of commissioners shall make a record of their proceedings held in joint session and have the same duly entered upon the proper order or record books of both said boards, and each board shall sign the same.

AN ACT entitled "An act to empower county commissioners to make special tax levies in certain cases," and declaring an emergency. [Approved and in force March 7, 1889; S., 1889, p. 372.

8135. Gravel road tax insufficient - Tax levy for deficit. SEC. I. Be it enacted by the General Assembly of the State of Indiana, That whenever it shall be made to appear, by petition signed by twenty resident freeholders of the county, to the board of county commissioners that any tax levy heretofore made for the building of any free turnpike or gravel road is found to be insufficient to pay the outstanding bonds sold by any county in this state for the purpose of building such free turnpike or gravel road, or whenever it shall be made to appear to the satisfaction of any board of county commis

sioners, by petition as aforesaid, that the amount raised by any former levy for the purpose of constructing any free turnpike or gravel road has been exhausted by reason of the settlement of any suit upon any defaulting county treasurer's bond, and there is outstanding unpaid bonds against the county, which have been sold for the purpose of building such road, such board of county commissioners may levy a tax of not to exceed one mill on each one dollar of taxable property of such county, for the purpose of paying the outstanding unpaid bonds aforesaid.

8136. Levy, when made. § 2. Such levy shall be made at the regular June session of the board of county commissioners of any such county, after notice has been given by publication in a weekly newspaper printed and published in such county for three weeks, by the county auditor, that such levy will be made at the regular June session of the board thereafter.

8137. Tax payers may resist-Appeal.. § 3. Any tax payer of the county may appear at any time before such levy is made by such board of county commissioners, and resist the same; and, upon the final order of the board, may appeal from such order to the circuit court by filing with the county auditor within thirty days from such final order an appeal bond payable to such board conditional for the payment of costs in case he fails to prosecute his appeal to effect, which appeal bond must be approved by the

auditor.

8138. Excess collected Surplus to gravel road fund. § 4. Whenever there is an excess realized by the collection of any tax levied as provided in the foregoing sections, the same shall be turned in to and credited to the gravel road repair fund of such county making such levy as hereinbefore provided.

8139. Emergency. § 5. An emergency existing for the immediate taking effect of this act, it shall be deemed to be in force from and after its

passage.

NOTES TO CHAPTER 70.

HIGHWAYS.

ARTICLE 2-IN ONE COUNTY, ONLY.

5015, 5017. Petition Notice

Report etc. These sections not only confer the authority, in general terms, to vacate highways but they, expressly, provide for the vacation of a highway or any part thereof" and specify what shall be done in the event that a part of a highway is vacated. It is a question to be tried by the proper court whether the vacation of a part of a highway will benefit the public, and irregularities in the proceedings before the county commissioners are not available on appeal to the supreme court; Hughes v. Beggs, 114-428.

5021. Action on reviewers' report. In a proceeding to vacate a highway if viewers appointed report in favor of the vacation and, on remonstrance interposed, reviewers are appointed who report adversely on the same question of vacation, an appeal will lie, to the circuit court, from the final order of the board of county commissioners approving the report of the reviewers and, on such appeal, the cause may be tried de novo; Cook v. Quick, 127-479. The case at bar is distinguished from the case of Bowman v. Jobs, 123-44 (which see note of), in which case the court followed the opinion in M'Kee v. Gould, 108-107. In Bowman v. Jobs the appeal was taken from the order approving the report of the first reviewers, who had reported against the utility of a proposed highway.

8068-71. Branch ways Establishing. This statute, providing for the establishment of branch highways etc., is unconstitutional, in that it assumes to authorize the seizure of the property of one citizen for the benefit of another, for use as a private way. It is not possible to effect a separation of its provisions and, as the provisions are inseparable, the act must fall as an entirety; Logan v. Stogsdale, 123-374.

ARTICLE 3--GENERAL PROVISIONS.

5030. Notice to remove fences. This section requires the township superintendent, when a public highway shall have been laid out through any inclosed land, to give sixty days' notice, in writing, to the owner, or occupant, of the land, to remove the fence; but such owner or occupant shall not be compelled to remove the fence between the first days of April and November. In Rutherford v. Davis, 95-245, this section is held to apply to and govern supervisors. In an action to restrain a supervisor from removing a fence, under the section, the only question was, as to the sufficiency or insufficiency of the complaint in regard to the allegation as to the notice. A notice given on the twenty-first day of March is insufficient, the owner being entitled to sixty days' notice independent of the time intervening between the first days of April and November. A supervisor proceeding on such notice to remove the fence on November 1, may be enjoined; Conley v. Grove, 124-209.

ARTICLE 4 CHANGE ON PETITIONER'S LAND.

5046. Petition - Consent. A proceeding for the change of a highway is properly brought under this section where all those over whose lands a highway runs join in petitioning for a change, even though it appears that, if the change be granted, it will result in vacating the highway and in consolidating it with another running on a dif ferent line, but, also, upon the petitioners' lands, which latter highway it is asked may be widened; Patton v. Creswell, 120-149.

5046-51. Petition - Consent. Where persons have, by proceedings before the board of county commissioners, secured a change in the location of a public highway upon their lands and expended money in making the new road passable for public travel, adjacent land owners, living in the same road district, after having silently stood by until the public authorities have accepted the road as sufficient, can not,

whether the proceeding under which the change was effected is valid or not, maintain a suit to enjoin the further improvement of the new road by the proper public officers by means of the road labor of the district. Nor, in such a case will the result be affected by the fact that the road, as it was originally maintained, afforded the plaintiffs access to a cemetery in which some of their relatives are interred, for this is ..not such special injury as authorizes them to maintain an action to enjoin the obstruction of the old or the improvement of the new road; Sunderland v. Martin, 113-413.

ARTICLE 7 - CONSTRUCTION AND REPAIR.

5064. Supervisors - Road districts. This section authorizes township trustees to divide the township into road districts. Whenever they deem it necessary to make any change in such road districts that may subserve public interests they are authorized to make the change, even though by so doing a duly elected supervisor may be deprived of official responsibility; Lyon v. Kee, 120-151.

5068, Oath-Bond-Duties. The duty of repairing highways being imposed on township trustees and road supervisors, a county is not liable for an injury caused to a traveler by the negligence of those charged with such duty. Therefore in the absence of a statute imposing the duty on counties in express terms and authorizing county boards to raise and appropriate the means of keeping highways in repair, a county is not responsible for the negligence of those charged with the care of public highways, nor can an action be maintained against it for an injury occasioned by a defective highway where no right of action is expressly given by statute; especially is this so when the officers or agents to whom the work of reparation is committed are independent public agents who are personally responsible for their misconduct or delinquency; Abbett v. Board etc., 114-62.

5077. Repairs, how made. This section (act of 1885) does not exonerate a county board from the duties nor a county from the responsibilities resting on them in relation to bridges on public highways. So, counties are liable for damages resulting from a negligent failure on the part of their boards of commissioners to keep bridges on public highways in repair, without reference to the cost of such repairs; Board etc. v. Arnett, 116-439.

5079. Entry upon lands- Damage assessed - Appeal. The proviso to this section allows an appeal only from the assessment made by the appraisers. As to the right of the supervisor to go upon the land and as to his right to go elsewhere than as pointed out by the land holder there is no provision for an appeal.

This section gives a right to a supervisor to enter upon the land of another and (1) at his pleasure, locate and construct ditches, drains etc., or (2) it has given him this power under certain restrictions and limitations. Under such circumstances as authorize the supervisor to enter upon the land of another he may do so and locate and build a ditch, drain, dam and the like, or remove gravel etc. as provided in the statute, and immediately thereafter notify the land owner, who may select one appraiser and the supervisor another, who shall appraise the damages and report to the supervisor, who shall report to the trustee within ten days after the appraisement. It, then, becomes the duty of the trustee, from funds in the township treasury, to pay the amount of the assessment. It is not necessary to first assess and tender the damages. It is not, however, the intention to confer on the supervisor unlimited author- . ity to enter upon private lands and appropriate such part thereof as may please his fancy for the purpose of constructing ditches etc. thereon, or removing dirt, gravel or the like. The statute only authorizes the location of a ditch on private lands when there can not be suitable drainage made in the roadway at the same expense as would follow in making it upon such private lands. If the supervisor can not provide suitable drainage in the roadway, then the land owner has a right to select the location for the drain or ditch -as the case may be- and if that selection is accessible and suitable, it is the duty of the supervisor to adopt it. If the land owner fails to point out the location, or if the selection he makes is not accessible or suitable, the supervisor may make the location.

If any question is made as to whether proper drainage can be made in the highway, or where the land owner has made an election, as to its being a suitable one, the land owner has a right to have the question tested in a judicial proceeding and, if irreparable injury will follow the construction of the drain, as insisted on by the su pervisor, an action for injunction is proper.

If proper drainage can be made in the roadway or if the land owner points out a suitable location the supervisor acts without authority and is a wrong doer; in the former case if he undertakes to construct a ditch on private land; in the latter case if he refuses to adopt the location and locates the ditch elsewhere; and in either case if the supervisor's action, if carried into execution, will work serious injury to the land owner and such injury as can not be fully compensated in damages, the work may be enjoined; Cauble v. Hultz, 118-18.

5087. Injuring or obstructing road — Suit. This section (S., 1883) has no application to a railroad company, which, having constructed a track upon a public highway, fails to restore such highway to its former condition of usefulness. In such a case an action for the statutory penalty herein prescribed would not lie. This statute prescribes no penalty for the failure of a railroad company to perform its statutory duty to restore to its former state, so nearly as may be, a highway on which it has laid its track; Cummins v. E. & T. H. RR. Co., 115-420.

ARTICLE 8 - FREE TURNPIKE ROADS.

5091. Power of county board. This section and others following constitute the statute of 1877, for the construction of gravel or macadamized roads. This statute is not repealed by the act of 1885 (§§ 5114k-5114dd). Each act of itself constitutes a complete system for the construction of such roads and for the method of procedure in making and collecting assessments. It is evident the intention was to create two systems; Robinson v. Rippey, 111-113; Board etc. v. Fullen, 111-411; Ely v. Board etc.. 112-364.

The statute authorizing appeals (5769) from the decisions of boards of county commissioners is applicable to and authorizes an appeal in proceedings under this act (of 1877) relating to free turnpikes; Hight v. Claman, 121-448.

A board of county commissioners being lawfully convened in special session for the transaction of other business, it is authorized, without previous notice to any person interested, to act on a petition then presented for the establishment of a gravel road; Loesnitz v. Seelinger, 127-427.

5092. Petition to improve - Viewers. In a proceeding to enjoin the collection of assessments levied for the construction of a gravel road it will be presumed, in the absence of an averment to the contrary, that on the appointment of the viewers and surveyor in the original proceedings, the county auditor gave the notices, required by this section, respecting the time and place of meeting of the viewers, the kind of improvement petitioned for etc., and that the board of county commissioners thus acquired jurisdiction of the parties interested; White v. Fleming, 114-572.

An appeal will not lie from an order of a board of county commissioners for the construction of a free gravel road and appointing a committee to apportion the costs on the lands benefited. The statute contemplates only one appeal in any case and that must be from the final decision and judgment in the case. On an order for the construction of a road such road can not be constructed without the further final action and decision of the board confirming the report of the appointees to estimate the expense of the improvement on the real property. Until such order and decision is made the proceedings remain under the jurisdiction of the board and an appeal lies only from such final order; Tomlinson v. Peters, 120-238.

This section does not provide for or contemplate personal notice to the owner of land of the meeting of viewers but only a "notice by publication to be given by the proper county auditor. In an action to enjoin the collection of a special free gravel road tax, an averment in the complaint that such tax was attempted to be levied on the plaintiff without notice to him," is not equivalent to an averment that the same was attempted to be levied" without any notice whatever" and is not sufficient to charge want of notice; Board etc. v. Dailey, 115–362.

Where the petition for the construction of a gravel road does not, on its face, disclose the absence of jurisdictional facts and no objection is made to it before the county board, an objection that it is not signed by the requisite number of freeholders is not maintainable on appeal; Robinson v. Rippey, 111-119.

In a proceeding to establish a free gravel road the order of the board of county commissioners required the viewers to meet on August 22, 1881. The report of the viewers recites that "in pursuance of a certified copy of said petition and an order from the said board of commissioners. *We, the said viewers and surveyor,

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