ARTICLE FOURTH.* OF THE LAYING OUT OF PUBLIC AND PRIVATE ROADS, AND SEC. 54. Who may apply for alteration or discontinuance of road. 55. When commissioners shall lay out, &c., road, survey to be made thereof. 56. Town clerk to put up copy of order laying out, &c., road. 57. Roads not to be laid through gardens, &c., without consent. 58. No highway to be laid out through enclosed land, unless certified. 59. Persons applying for road, to cause notices to be posted. 60. Freeholders to examine as to necessity of road. 61. If they deem road necessary, to make certificate thereof. 62. Before commissioners lay out road, to give notice. 63. If road laid out, description of it to be filed. 64. Damages may be fixed. Road not opened until damages assessed. 70. Damages and expenses how collected. 71. When value of a discontinued road to be deducted. 72. When commissioners of different towns disagree. 73. When highway upon line of two towns. 74. Such highway to be divided into two or more road districts. 75. Each district to belong to town to which allotted. 76. Provision as to all such highways heretofore laid out. 77. When private road applied for, freeholders to examine. 78. If road necessary, to make certificate thereof. 79. By whom and for what purposes private roads used. 80. Public roads not to be less, and private, not more than three rods wide. 81 & 82. Applications to discontinue an old road. 83. Papers relating to laying out, &c., road, to be filed. 84. Persons aggrieved, may appeal. 85. Judges to whom appeal made, to have jurisdiction. 86. Appeal to be in writing. 87. Judges to give notice to commissioners, &c. 88. Notice to be served before time mentioned therein. 89. Judges to convene; attendance of witnesses; decision conclusive. 90. Each judge entitled to two dollars a day. 91. If decision be reversed, judges to lay it out. 92. If office of a judge become vacant, another to be associated. 93. Road fixed by judges, not to be altered, &c., without their order. 96. When commissioners to give notice to remove fences. 101. Public highways used for twenty years, to be opened to width of two rods. $ 54. Every person liable to be assessed for highway labor, may apply to the commissioners of highways of the town in which he shall reside, to alter or discontinue any road, or to lay out any new road. Every such application shall be in writing, addressed to the commissioners, and signed by the person applying. 6 B., 607; 15 B., 471; 19 B., 189; see Laws of 1836, ch. 122. * See amendatory act Laws of 1836, ch. 122; 1838, ch. 314. $ 55. Whenever the commissioners of highways shall lay out, alter or discontinue any road, either upon application to them or otherwise, they shall cause a survey to be made of such road, and shall incorporate such survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same 20 N. Y., 252; 1 Cow., 23; 10 How. P. R., 209. ART. 4. Survey. $56. It shall be the duty of the town clerk, whenever any Order to be order of the commissioners for laying out, altering or discon- posted, &c. tinuing a road shall be received by him, to post a copy of such order on the door of the house where the town-meeting is usually held; and the time herein after limited for appealing from any such order, shall be computed from the time of recording the same. 2 R. L., 283, § 40; 6 B., 611; 19 B., 179. [514] owner, sary. $57. No public or private road shall be laid out through any orchard or garden, without the consent of the owner Consent of thereof, if such orchard be of the growth of four years or when neces more, or if such garden have been cultivated for four years or more, before the laying out of such road. 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. 2 R. L., 283, § 16; 5 N. Y., 572; 6 B., 607; 3 H., 460; 6 Pai., 86; 4 when neces $58. No highway shall be laid out through enclosed, Oath, &c., improved or cultivated land, without the consent of the owner sary. or occupant thereof, unless certified to be necessary by the oath of twelve reputable freeholders of the town, in the manner herein after provided. 2 R. L., 283, § 16; 7 W., 265; 6 W., 464; 4 Cow., 190; 27 B., 96; 3 H., S59. Every person who shall apply for the laying out of a Notice of highway through any such land, shall cause notices in writing application. to be posted up at three of the most public places of the town, specifying, as near as may be, the route of the proposed highway, the several tracts of land through which the same is proposed to be laid, and the time and place at which the freeholders will meet to examine the ground. Every such notice shall be posted up at least six days before the time specified therein for the meeting of the freeholders. Laws of 1826, 228. S 60. If twelve reputable freeholders of the town, not Proceedinterested in the lands through which the road is to be laid, ings. nor of kin to the owner thereof, shall appear at the time and place specified in the notice, they shall then be sworn by a justice of the peace or any officer authorised to administer I. - 60 TITLE 1. oaths, well and truly to examine and certify, in regard to the necessity and propriety of the highway applied for. Proceedings. Notice to occupant. Description of road. [515] Damages, how ascer &c. Laws of 1826, 228; 1834, ch. 267; 7 W., 265; 23 B., 197. S61. They shall then personally examine the route of such highway, and shall hear any reasons that may be offered for or against laying out the same. If they shall be of opinion that such highway is necessary and proper, they shall make and subscribe a certificate in writing to that effect, which shall be delivered to the commissioners of highways of the town. Laws of 1826, 228; 2 H., 444; see Laws of 1845, ch. 180. $62. Before the commissioners shall determine to lay out the highway, so applied for and certified, they shall cause notice in writing to be given to the occupant of the land through which the road is to run, of the time and place at which they will meet to decide on the application. The notice shall be served by delivering the same to such occupant, or if he be absent, by leaving the same at his dwelling-house; and in either case, at least three days before the time of meeting. 20 W., 187; 17 How., P. R., 75; Laws of 1826, 228. $ 63. The commissioners shall meet at the time specified in the notice, and shall hear any reasons that may be offered for or against laying out the highway. If they shall determine to lay out such highway, they shall make out and subscribe a certificate of such determination, describing the road so laid out, particularly, by routes and bounds and by its courses and distance, and shall deposit the same with the town clerk. 2 R. L. 275; 15 B., 480; 23 W., 326, 328; 4 B., 51; Laws of 1817, 31; 1826, 229; 1847, ch. 455; 1853, ch. 62. S64. The damages sustained by reason of the laying out tained by and opening such road, may be ascertained by the agreement agreement. of the owner and the commissioners of highways, provided Road not to such damages do not exceed one hundred dollars; and unless be opened, such agreement be made, or the owner of the land shall in writing release all claim to damages, the same shall be assessed in the manner prescribed by law, before such road shall be opened, or worked, or used. Every such agreement or release shall be filed in the town clerk's office, and shall for ever preclude such owner from all further claim for such damages. Damages, how jury. 19 W., 102; 4 B., 51, 64; 7 B., 297; Laws of 1847, ch. 455. $ 65. On the application of the commissioners of highways, assessed by or of the owner of the land through which such road is laid out, to any two justices of the peace of the town, they shall issue their warrant to some constable of some other town of the same county, neither interested, nor of kin to any person interested, in the land through which the road is laid out; directing him to summon twelve disinterested freeholders, residing in some other town than that in which such road is laid out, and not of kin to the owner of such land, to assess the damages sustained by the laying out such road; and shall therein specify the time and place at which the jury shall meet. 5 Cow., 292; see Laws of 1847, ch. 455; 1845, ch. 180; 7 B., 304; 19 W., 103. ART. 4. ings. $66. Upon such freeholders appearing, the justices who Proceedissued the warrant, shall draw by lot, six of the names of the persons attending, to serve as a jury; and the first six persons drawn, who shall be free from all legal exceptions, shall be the jury to assess the said damages. $67. In all cases of the assessment of such damages, the Ib. persons by whom the assessment is to be made, shall view and examine the premises; and before making their determination, the freeholders making the same, shall be sworn well and truly to determine and assess such damages. S 68. The verdict of the jury assessing such damages, shall ♫. be received and certified by the two justices who issued the warrant for summoning them, and shall be delivered by them to the commissioners of highways of the town. Laws of 1845, ch. 180, 5, 6, 7, 8. $69. Such commissioners shall cause a copy of the said Ib. verdict, with a statement of the charges and expenses, to be delivered to the supervisor of the town, who shall lay the same before the board of supervisors of the county. The board shall have power to examine into the principles on which such assessment shall have been made, and into the fairness and justice thereof, and to increase or reduce the damages, as in their judgment shall be just and reasonable. 2 R. L., 275, § 16, 38, & 45; Laws of 1817, 31, § 1; 1826, 229, § 27; 7 [516] and expen collected. $ 70. The amount of damages, as finally settled by the Damages board of supervisors, or as liquidated by the commissioners ses, how of highways, as provided in the sixty-fourth section of this Title, together with the charges of the commissioners of highways, justices, surveyors and other persons or officers employed in making the assessment shall be levied and collected in the town within which the highway shall be situated. The monies so collected, shall be paid to the commissioners of highways of the same town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges. See Laws of 1845, ch. 180, § 5, 6, 7 & 8; 12 W., 98. in certain estimated. S71. Where any person shall be the owner of any land Damages, over which any highway shall run, and such highway shall be cases, how discontinued, in whole or in part, by reason of some other road to be established and laid out under this Title, through the lands of the same person, the persons who shall assess the damages shall take into calculation the value of the road so discontinued, and the benefit resulting to such person by reason of such discontinuance, and shall deduct the same from the damages assessed for the opening and laying out such new road; and thereupon the owner of the land may enclose so much of the highway so discontinued, as shall belong to him. 2 R. L., 275, § 17. TITLE 1. Disagree ments respecting certain roads. Road upon line of two towns. How divided into districts. [517] Effect of allotment. Former roads. Private roads, how laid out. Proceedings. $ 72. When the commissioners of highways of any town shall disagree with the commissioners of any other town in the same county, relating to the laying out of a new road, or the alteration of an old road, extending into both towns; or when the commissioners of a town in one county shall disagree with the commissioners of a town in another county, relative to laying out a new road, or altering an old road, which shall extend into both counties; the commissioners of both towns shall meet together at the request of either disagreeing commissioners, and make their determination upon such subject of disagreement. 2 R. L., 275, § 18. $73. Whenever it shall become necessary to have a highway upon the line between two towns, such highway shall be laid out by two or more of the commissioners of highways of each of said towns, either upon such line, or as near thereto as the convenience of the ground will admit; and they may so vary the same either to the one or the other side of such line, as they may think proper. 2 R L., 275, 19; Laws of, 1821, 166; 4 H., 140. $74. It shall be the duty of the same commissioners, when they lay out such highway, to divide it into two or more road districts, in such manner, that the labour and expense of opening, working, and keeping in repair such highway, through each of the said districts, may be equal as near as may be, and to allot an equal number of the said districts to each of the said towns. 2 R. L., 275, § 19; Laws of 1821, 166; 17 B., 481. $75. Each district shall be considered as wholly belonging to the town to which it shall be allotted, for the purpose of opening and improving the road, and for keeping it in repair; and the commissioners shall cause such highway, and the partition and allotment thereof, to be recorded in the office of the town clerk in each of their respective towns. $76. All highways heretofore laid out upon the line between any two towns, shall be divided, allotted, recorded, and kept in repair, in the manner above directed. $77. Whenever application shall be made to the commissioners of highways of any town, for a private road, they shall summon twelve disinterested freeholders of the town where the land through which such road is proposed to be laid out, is situated, to meet on a day certain; of which day. notice shall be given to the owner or occupant of such land. Such freeholders, when met, shall be sworn as above provided, and shall then proceed to view the lands through which such road is applied for. Laws of 1821, 166, § 20; 6 H., 48; 24 W., 368; 4 H., 150; see Laws of 1853, ch. 174; 1848, ch. 77. $78. If they shall determine that such road is necessary, they shall make and subscribe a certificate in manner afore |