Hightower v. Jones

Simmons, Justice. "We have twice carefully read the record in this case, and find that the action of the ordinary in proceeding to change and lay out the road mentioned in the record was in every particular in accordance with the requirements of the code, and that the demurrers and pleas filed before him were insufficient, and show no legal grounds to prevent the road from being changed and laid out as described in the petition for the same and in the report of the road commissioners-. The ordinary was therefore right in overruling the same, and the judge of the superior court was right in sustaining the rulings of the ordinary and in overruling the certiorari. If the plaintiff in error will be damaged by the appropriation or injury, of his property in laying out and constructing this road, the code (§637) points out his remedy to have his damages assessed by a jury; and it appears from the record in this case that the ordinary had issued his order to the sheriff to summon a jury for the purpose of assessing his damages. It may turn out that upon the trial before the jury, they may give such amount of damages as will “transcend the utility of such road,” and the ordinary “may revoke the road [703] altogether, or order the same altered so as to avoid the land so damaged, or make the owner an offer of such compensation as they may think just.” Code, §646. Judgment affirmed.