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said, and the commissioners shall thereupon lay out the road, and cause a record thereof to be made in the town clerk's office. The damages of the owner of the land through which such road shall be laid out, shall be ascertained or assessed in like manner as if the same was a public highway, and such damages shall be paid by the person applying for the road.

5 W., 580; 7 How. P. R., 27; 10 W., 585. S 79. Every such private road, when so laid out, shall be For what for the use of such applicant, his heirs and assigns; but not load to be to be converted to any other use or purpose, than that of a road. Nor shall the occupant or owner of the land through which such road shall be laid out, be permitted to use the same as a road, unless he shall have signified his intention of so making use of the same, to the jury or commissioners, who ascertained the damages sustained by laying out such road, and before such damages were so ascertained.

3 H., 607; 14 J. R., 382; 5 W., 580. $ 80. All public roads to be laid out by the commissioners Width of of highways of any town, shall not be less than three rods wide, and all private roads shall not be more than three rods wide.

Laws of 1821, 166, § 22; Laws of 1826, 228, § 2; 5 W., 580. $ 81. Whenever application shall be made for the discon- Old roads, tinuance of an old road, on the ground that it has become tinued. useless and unnecessary, the commissioners of highways to whom such application shall be made, shall summon twelve (518] disinterested freeholders of the town, to meet on a day certain, to consider such application. Such freeholders when met, shall be sworn well and truly to examine and certify in regard to the propriety of such discontinuance.

8 B., 157. S 82. They shall then proceed to view such road, and if Ib. they shall be of opinion that the same is useless and unnecessary, they shall make and subscribe a certificate in writing to that effect, which shall be delivered to the commissioners of highways, who shall thereupon proceed to decide upon such application.

8 B., 157. $ 83. All applications, certificates and other papers relating Papers, to the laying out, altering or discontinuing of any road, shall be filed by the commissioners of highways, as soon as they shall have decided thereon, in the office of the town clerk of the town.

S 84. Every person who shall conceive himself aggrieved Appeals. by any determination of the commissioners of highways, either in laying out, altering or discontinuing, or in refusing to lay out, alter or discontinue any road, may at any time within sixty days thereafter, appeal to any three of the judges of the court of common pleas of the county, in which

where filed.

RITLE I. such Toa thereon, suho shall appe; 8 N. 15:37: '29 Bop 116;

TITLE 1.

any other perso 2:2; Laws of 18122, 15 J. R., 63 16 How. P.

Power and duty of judges.

Form of appeal.

Proceed

ings.

such road is situated. But an appeal by one person, and a decision thereon, shall not conclude nor affect the rights of any other person, who shall appeal within the limited period.

2 R. L., 282; Laws of 1817, 32; 8 N. Y., 479; 25 W., 453; 24 W., 492;

7 W., 266; 4 Pai., 522; 15 J. R., 537; 29 B., 80; 27 B., 238; 20 How. P. R., 305; 14 How. P. R., 528; 6 How. P. R., 175; see Laws

of 1845, ch. 180 ; 1847, ch. 455. S 85. The judges to whom the first appeal from any such determination shall be made, shall have exclusive jurisdiction of all appeals from the same determination, to the end that their decision when made may embrace the whole subject; and for this purpose they shall suspend all proceedings upon the appeal first made, and upon all other appeals received by them from such determination, until the time limited for such appeals shall have expired.

7 W., 265. $ 86. Every such appeal shall be in writing, addressed to the judges, and signed by the party appealing. It shall briefly state the ground upon which it is made, and whether it is brought to reverse entirely the determination of the commissioners, or only to reverse a part thereof; and in the latter case, it shall specify what part.

19 B., 240; 25 W., 455. $ 87. It shall be the duty of the judges to whom the appeal is made, to proceed thereon as soon as may be convenient. Where the determination appealed from was against an application for laying out, altering or discontinuing a road, the judges shall give notice to the commissioners by whom such determination was made. Where the appeal is from a determination in favor of an application for laying out, altering or discontinuing a road, the notice shall be given to the commissioners, and to one or more of the applicants for such road. In all cases, the notice shall specify the time and place, at which the judges will convene to hear the appeal.

$ 88. Every such notice shall be served at least eight days before the time mentioned therein, by delivering the same to one of the commissioners whose determination is appealod from, or by leaving the same at his dwelling-house. If the notice be also directed to an applicant, it shall be served in the same manner.

20 W., 187; 13 W., 434. S 89. It shall be the duty of the judges to convene at the time and place mentioned in the notice, and to hear the proofs and allegations of the parties. They shall have power to issue process to compel the attendance of witnesses, and may adjourn from time to time, as may be necessary. Their decision, or that of any two of them, shall be conclusive in the premises, and every such decision shall be reduced to writing, be signed

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Notice of appeal.

Proceedings.

ART. 4.

out road.

by the judges making it, and be filed by them in the office of Al the town clerk of the town, who shall record the same.

2 R. L., 282, § 36; Laws of 1817, 32, & 2; 20 W., 187; 13 W., 434; 4

Cow., 190; 6 B., 607; 19 B., 240; 2 Cai., 179; 15 5. R., 537; 25

W., 453. S 90. Every such judge shall be entitled to receive two Fees. dollars, for every day employed in the hearing and decision of such appeal, to be paid by the party appealing where the determination of the commissioners shall be affirmed: but where it is reversed, to be a charge against the county.

See Laws of 1847, ch. 455; 19 B., 240; 8 N. Y., 476. S 91. Where an appeal shall have been made from a deter- When to lay mination of commissioners refusing to lay out or alter a road, and the judges shall reverse such determination, such judges shall lay out or alter the road applied for; and in doing so, shall proceed in the same manner in which commissioners of highways are directed to proceed, in the like cases. Such road shall be opened by the commissioners of the town, in the same manner as if laid out by themselves.

12 B., 149; 1 Cow., 23; 8 N. Y., 476 ; see Laws of 1845, ch. 180. S 92. In case the office of any one of the judges to whom Vacancies. such appeal shall be made, shall become vacant before the determination of such appeal, it shall be the duty of the remaining judges named therein, to associate with themselves another of the judges of the same court, who shall act with them in all subsequent proceedings, in the same manner as if he had been originally named in such appeal.

$ 93. No road which has been fixed by the decision of the How judges on an appeal to them, shall be discontinued or altered, so long as such judges, or either of them, shall continue in coinmission, except by the order of the same judges, or such of them as continue in commission, joined with such other judge or judges, as shall be necessary to make three; such additional judge or judges, to be selected by the person applying for the discontinuance or alteration.

2 R. L., 282; 1 W., 373. $ 94. If no one of the said judges shall continue in com- [520] mission, such application shall be made to any three of the Tb. judges of the same court, not having any interest in the road so desired to be discontinued or altered.

Laws of 1819, 155, § 1. $ 95. No application made under either of the two last Ib. preceding sections, shall be acted upon by the judges, unless the same be accompanied by a certificate, signed by the commissioners of highways of the town in which the road is situated, stating their approbation of such application; and before the judges decide thereon, they shall proceed to view the road, so desired to be discontinued or altered. They shall be entitled to the same compensation as above provided, to be paid by the applicant.

2 R. L., 282, § 37; 3 H., 607; 2 Cow., 424.

them for of the res named appeal, it become

altered,

TITLE 1. Fences to

Ib.

of commisBioners confirmed.

S96. Whenever the commissioners of highways shall have be removed laid out any public highway, through any enclosed, cultivated

or improved lands, in conformity to the provisions of this Title, and their determination shall not have been appealed from, they shall give the owner or occupant of the land through which such road shall have been laid, sixty days' notice, in writing, to remove his fences. If such owner shall not remove his fences within the sixty days, the commissioners shall cause such fences to be removed, and shall direct the road to be opened and worked.

S 97. If the determination of the commissioners shall have been appealed from, then the sixty days' notice shall be given, after the decision of the judges upon such appeal, shall have been filed in the office of the town clerk of the town.

2 R. L., 282, $ 39; 3 H., 607; 6 W., 634; see Laws of 1845, ch. 180. Certain acts $98. The acts and doings of the commissioners of highways

of the several towns in this state, or of any two of them, in laying out, altering or discontinuing any road or highway, since the thirty-first day of December, one thousand eight hundred and five, and prior to the fourteenth day of April, one thousand eight hundred and twenty-six, are confirmed from the last mentioned day; provided such commissioners, or any two of them, shall have caused a survey of such roads or highways to be filed and recorded in the office of the town clerk of the town. But such confirmation shall not affect any decision of the judges of the court of common pleas, made prior to the fourteenth day of April, one thousand eight hundred and twenty-six, confirming or reversing the determination of the said commissioners; nor any appeal from such determination, made within six months after that day; nor any suits or proceedings which on that day were pending, at law or in equity.

Laws of 1826, 229, $ 8; 7 W., 145. When roads $ 99. Every public highway and private road, already laid

out and dedicated to the use of the public, that shall not have

been opened and worked within six years from the time of its (521) being so laid out, and every such highway hereafter to be laid

out, that shall not be opened and worked, within the like period, shall cease to be a road for any purpose whatever; but the period during which any suit, mandamus, certiorari or other proceeding, shall have been or shall be pending in regard to any such highway, shall form no part of said six years, and all highways that have ceased to be travelled or used as highways for six years, shall cease to be a highway for any purpose.

2 R. L.,. 277; Laws of 1861, ch. 311; 2 Cow., 426. What roads $ 100. All public highways now in use, heretofore laid out

and allowed by any law of this state, of which a record shall have been made in the office of the clerk of the county or town; and all roads not recorded, which have been or shall

cease.

What road. highways.

ART. 6.

have been used as public highways, for twenty years or more; shall be deemed public highways, but may be altered in conformity to the provisions of this Title.

11 B., 457; 8 B., 157; 17 J. R., 276; 7 J. R., 107; 2 J. R., 424; Laws

of 1817, 32; 2 R. L., 277. S 101. It shall be the duty of the commissioners of high- Width. ways, to order the overseers of highways, to open all roads to the width of two rods at least, which they shall judge to have been used as public highways for twenty years.

See Laws of 1838, ch. 262; 1847, ch. 455; 1845, ch. 180; 1853, ch. 174,

ch. 62; 1857, ch. 491; 1858, ch. 51; 1834, ch. 267; 1836, ch. 122;
11 B., 457.

ARTICLE FIFTH.
REGULATIONS AND PENALTIES CONCERNING THE OBSTRUCTION OF HIGH-

WAYS, AND ENCROACHMENTS THEREON.
SEC. 102. Forfeiture for obstructing highway.

103. Where fences encroach, commissioners to order them removed. 104. If not removed, party to forfeit fifty cents a day. 105. If encroachment denied, jury to be summoned. 106. Jury to be sworn, and to hear proofs. 107 & 108. Finding of jury, how enforced. 109. No fences to be removed but between first of April and November. 110. When trees fall into highway, occupant to remove them. 111. Persons cutting trees without consent, to forfeit one dollar, &c. 112. Penalty for leaving trees in any waters declared a highway. 113. No swinging gates allowed, except on lands liable to be overflowed. 114. Such gates to be maintained by the person benefitted. 115. If more than one, expense borne by all the occupants benefitted. 116. Overseer to file statement of charges, &c. 117. Overseers to collect such charges. 118. Commissioners to file an account of such gates. S 102. Whoever shall obstruct any highway, or shall fill up Penalty for

obstruct or place any obstruction in any ditch constructed for draining ing. the water from any highway, shall forfeit for every such offence the sum of five dollars.

2 R. L., 277; 27 B., 211; 23 W., 451; 9 J. R., 349, 365. S 103. In every case where a highway shall have been laid Fences, a out, and the same has been or shall be encroached upon by how to be

removed. fences, erected by any occupant of the land through or by which such highway runs, the commissioners of highways of the town, shall, if in their opinion it be deemed necessary, order such fences to be removed, so that such highway may be of the breadth originally intended. The commissioners making the order, shall cause the same to be reduced to writing, and signed. They shall also give notice in writing, to the occupant of the land, to remove such fences within sixty days. Every such order and notice shall specify the breadth of the road originally intended, the extent of the en

(522) croachment, and the place or places in which the same shall be.

2 R. L., 277; 27 B., 211; 6 W., 634; 2 H., 473; 14 W., 255; 3 W., 471;

2 Cow., 424; 9 J. R., 359; 7 W., 300.

when and

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