People ex rel. French v. Township Board of Springwells

Manning J.: The complaint against the action of the highway commissioners is, that they laid out a part only of the highway asked for. They should have laid out the whole of the road asked for or no part of it. We think the statute is clear on this point. It provides that, when any seven or m»re freeholders of a township shall wish to have a highway in any township, not included within the corporate limits of a city or village, laid out, altered or discontinued, they may, by writing under their hands, make application to the commissioners of highways of the township for that [436] purpose, who shall proceed to lay out, alter or discontinue -such highway, &c. Laws 1861, p. 256, § 1. They are to view the premises described in said application, and ascertain and determine the necessity of laying out, altering or -discontinuing such highway. Ibid. § 3. Not such highway— the one described in the application — or any part thereof; or such highway as the commissioners may deem ■expedient, unless it be the one asked for in the application. It does not follow that the freeholders would have united in an application for the part laid out because they had asked for that and something more. However *that may be, the commissioners had no application before them to do what they did. The road laid out crosses the relators’ land, and if they are not interested in what the commissioners did, it would be hard to say who are. . The commissioners erred in laying out a part only of the road applied for, and the township board erred in affirming their action. The proceedings of both are quashed, but without costs, as the. board acted judicially on an •application giving jurisdiction to the commissioners. Martin Ch. J. and Campbell J. concurred.] Christianct J. did not sit in this case.