Ohio v. Carman

1 Tapp. Rep. 194

• Court: Jefferson County Court of Common Pleas
• Decided: September 15, 1817
• Status: Published

Opinion

President.

If this is to be received as a record of a road duly laid out and established, it is of a different road from the one mentioned in the indictment; the latter describes the road as “from the township of Steubenville, towards Boyd’s mill,” the former “ beginning at the mouth of Long Liclc run, thence through the lands of Robert Iiill to intersect the road leading down McMahon’s run to Steuben-ville, a little above Bez’l Wells’ saw mill.” — These are totally irreconcilable, even if there could be a road from a township to a place or towards a place (as Boyd’s mill) within the same township. The mouth of Long Lick run, the lands of Robert Hill, and the road leading down M‘Mahon’s run, are all within the township of Steubenville. The indictment is for erecting a nuisance on an highway running from the township of Steubenville, and of course wholly without that township.

But this is not such record of a road as the law requires to be made; the statute in force at the time these proceedings were had before the commissioners, is in the 4th vol. of the statute laws, by that, section 2d, “ every application for any road, shall be by petition, specifying particularly where such road begins, the remarkable places by which such road is intended to pass, if any, and where the same shall end, signed by at least twelve landholders of the county” — it is only on the petition of twelve landholders of the county, that the Commissioners can proceed to cause to be laid out and surveyed a public highway; it is analagous to a petition in Chancery, or a declaration at law; on such petition being presented to the commissioners, and on their being satisfied that legal notice had been given, they are to appoint viewers and a skilful surveyor, who “ shall survey such road according to the view of said landholders or a majority of them, conspicuously marking the same throughout and truly noting the courses and distances thereof, and at every mile’s end shall erect a monument expressing the number thereof, and shall protract the survey of said road, which, together with the proceedings of the said viewers, shall be certified respectively, and returned to said commissioners” — and if the commissioners are satisfied, that the proposed road will be of public utility they shall “ cause a record thereof to be made, which shall thenceforth be deemed a public highway” — any person’s land may be taken for the use of the public, (on compensation being made,) for roads and highways.; the manner in which it may be taken and the amount of compensation adjusted, are fully provided for; but the transfer from the individual to the state is incomplete, until such transfer is recorded; the record, then, is the only evidence of title in the state; such transfer is not like a bargain and sale of land between two individuals, if is a compulsory change of possession, not the deed of a grantor to be expounded most strongly against him, but a matter of mere legal right to be expounded according to the letter.

There is no difficulty in determining what is a record in any case; a record of a deed is an exact copy of the deed, a record of a suit at law, or in Chancery, is a like copy of the whole proceedings m such suit. When, then, the law requires a record of the laying out and establishing of a road to be made, before it shall become a public highway, it requires that the whole proceedings shall be copied into a book prepared for that purpose, to remain as permanent evidence of the public right and title. As well might that be called the record of a suit at law, which should omit the pleadings, as these minutes can be called a record of the proceedings in laying out and establishing an highway, with the omission of the petition and plat of the road.-

If such loose minutes are the only evidence we have of the laying ,out and establishing of highways, it is time a more correct course was adopted by the county commissioners : that they have neglected their duty is no reason why we should receive their journal for a record; the public interest requires that full and complete record evidence should be kept of their right to, and interest in, the highways; as there is no such evidence offered in this case, the indictment cannot be supported.

Verdict for defendant.

Judge Anderson declined giving an opinion, having been one of the county commissioners.