State v. Hulick

37 N.J.L. 70

• Court: Supreme Court of New Jersey
• Decided: February 15, 1874
• Status: Published

Opinion

Scudder, J.

There is one reason assigned, among others, which is fatal to the return made by the surveyors of highways of this public road, laid in part through the lands of the prosecutors.

On referring to the map which accompanies the return, it appears that the several persons whose lands are taken for this road, own separate parcels on each side of the line of the proposed highway. This is indicated by their names at different distances along the several courses of the line surveyed ; but the lengths of the line through the lands of the several owners, is not given, nor does the map show the fences or lines between the different tracts of land, where the road crosses them.

It is also shown by the affidavits taken that these are improved lands, which are fenced and under cultivation.

Section 5 of the act concerning roads, requires the surveyors of highways to make a return of the road, with a map or draught of the same, with the courses and distances and reference to the most remarkable places, and the improvements through which it may pass, &c.

The phraseology in this section has had a judicial construction which has long been followed in our courts. It does not mean that barns or buildings lying off the line of the road shall appear on the map ; nor that the inner fences be shown by which the land is subdivided in fields for the convenience of farming or otherwise ; but it does require that where the line of the road crosses outside fences, which mark the divisions between lands of different owners, that such crossings shall be distinctly marked and shown on the map. State v. Hopping, 3 Harr. 423; State v. Smith, 1 Zab. 91.

As these indications of improved lands belonging to the separate owners, do not appear on the map, and there are no distances given through the lands of the several owners, the proceedings are illegal, and the return of the surveyors is set aside.