2 Even if an act is plainly an encroachment on the rights of others, it is presumed that the party injured consents, unless he himself objects; and no one else can object for him.1 Want of notice to other parties cannot be taken advantage of by those who have received notice; nor can a deviation in the route, at some other point than on complainant's land, or a deviation caused by the complainant himself, be complained of. An individual who has had an award of his own damages cannot object that there has been no finding as to others. There is a line of cases which indicate that in matters of public moment, like that of laying out a road, irregularities may be brought to the notice of the court by others than those whose lands are taken. The public should not be saddled with maintaining unnecessary roads, and hence defects may be insisted on, in proceedings, affecting others only who do not complain. Proceedings may be considered as an entirety, and valid as to all or valid as to none." 5 99 § 269. Who are "interested or aggrieved Interest of tax-payers. - The interest of those interested or aggrieved" does not embrace every citizen, but only those who are peculiarly concerned on account of some special interest not common to others. They must be proprietors of land affected, and not simply members of the community." 8 Hingham Bridge v. Norfolk, 6 Allen, 353; Supervisors v. Gorrell, 20 Gratt. 484. 1 Hingham Brigde v. Norfolk, 6 Allen, 353; Wellington, petitioner, 16 Pick. 87; Anderson v. Turbeville, 6 Coldw. 150; Clifford v. Eagle, 35 Ill. 444. 2 Nichols v. Salem, 14 Gray, 490. 3 Newton v. Agricultural Branch R. R., 15 Gray, 27. The State v. Woodward, 9 N. J. L. 21. 5 Clifford v. Eagle, 35 Ill. 444. 6 Appleby Road, 1 Grant, 443; The State v. Woodruff, 36 N. J. L. 204; The State v. Cake, 24 N. J. L. 516; The State v. Emmons, 24 N. J. L. 45. But see The State v. Blauvelt, 34 N. J. L. 261. 7 Brush v. Detroit, 32 Mich. 43. 8 Goldman v. Justices, 3 Head, 107. 9 Creswell v. Commissioners, 24 Ala. 282. Only petitioners and remonstrators can question the jurisdiction in road proceedings. They need not reside immediately upon the line of the road or proposed change, but must reside in the vicinity, within reasonable distance, so as to be injuriously affected by the change. A person who lives so near that he may be compelled to work on the road has not sufficient interest to justify him in suing out a certiorari to revise the proceedings of commissioners.' Tax-payers, as such, do not have sufficient interest to interfere.* 1 Canyonville Road v. Douglas County, 5 Oreg. 280. 2 Wilson v. Whitsell, 24 Ind. 306. 3 Parnell v. Commissioners, 34 Ala. 278. Supervisors v. Gorrell, 20 Gratt. 484; Southern Boulevard, 3 Abb. Pr. (N. s.) 447. But see The People v. Cortelyou, 36 Barb. 164. 302 CHAPTER XXIV. OF PROCEEDINGS IN OPENING HIGHWAYS AND STREETS. 270. Application for road. 271. Petition of householders or freeholders. 272. Refusal of officers to lay out roads. 273. Road an encumbrance on land. 274. Ability of public to maintain road. 275. Public necessity - Public convenience. 277. Description of road. 278. Termini should be certain. 279. Terminus need not be on highway. 280. Course of road. 281. Widening and straightening roads and streets. 283. The road must be laid out as petitioned for. 284. The road must be built as laid out. 285. Entry on adjoining land-Removal of fences. § 270. Application for road. No particular form of words is required in an application for a road, and the greatest technical accuracy and precision is not to be expected. Jurisdiction does not fail because the word "road," instead of "highway," is used in the petition or record. The word "street" and "road" are synonymous. The application should be in writing. The petition should show the place of beginning, intermediate 1 Windham v. Commissioners, 26 Me. 406. 3 2 Fitzwater Road, 4 Serg. & R. 106. The word "street" applies to and includes any highway (not being a turnpike road), and any road, public bridge (not being a county bridge), lane, footway, square, court, alley, passage, whether a thoroughfare or not, and the parts of any such highway. London, Chatham, etc., Rail. Co. v. Mayor of London, 19 L. T. (N. s.) 250; Local Board of Health v. Jones, 26 L. J. (Exch.) 33. 3 Pritchard v. Atkinson, 3 N. H. 335. points, and terminus,1 and should show the names of owners or occupants of land, or the board may not act on the same. It is no objection that proceedings were carried on in the name of one who was named in the petition, but who did not actually sign it, if the signers were sufficient in number. Improper inducements to parties to apply for roads—as, that damages shall in any event be paid to them will render proceedings void. The § 271. Petition of householders or freeholders. propriety of establishing country roads is frequently made to depend upon the desire expressed by those whose lands are to be affected, or whose convenience is to be advanced by the establishment of the road. The application of these householders or freeholders is the foundation of the order for opening the road, and the record should show such petition, as jurisdiction will not otherwise attach. As to the question whether the record should show whether or not the petitioners were freeholders, there is a division of opinion, the Supreme Court of Indiana holding that the fact may be shown on the hearing, and the Supreme Court of Kansas holding that the record should show the fact. The jurisdiction is not lost by one of the freeholders dismissing the proceedings as to himself. Jurisdiction cannot be defeated after it has once attached. Unmarried men keep ing houses and servants are "householders," and may make valid petitions in road matters.9 1 Johns v. Marion County, 4 Oreg. 46. 2 Hays v. Campbell, 17 Ind. 430. 3 Hays v. Parrish, 52 Ind. 132. The State v. Stout, 33 N. J. L. 42. 5 Jefferson County v. Cowan, 54 Mo. 234; Robinson v. Mathwick, 5 Neb. 252; Doody v. Vaughn, 7 Neb. 28. 6 Brown v. McCord, 20 Ind. 270. Board of Commissioners v. Muhlenbacher, 18 Kan. 129; Oliphant v. Commissioners of Atchison County, 18 Kan. 386. 8 Little v. Thompson, 24 Ind. 146. Kramer v. Clatsop County, 6 Oreg. 238. § 272. Refusal of officers to lay out road. On the unreasonable refusal of municipal officers to lay out the road, the commissioners of the county may be called upon to lay out such road. The petition must show distinctly that the refusal was was unreasonable. If commissioners refuse to lay out a road, that is no ground for refusing to entertain a new petition. What may seem to be unnecessary and inconvenient at one time may at some subsequent time be manifestly both necessary and convenient. The dismissal of proceedings does not operate as a bar.2 § 273. Road an encumbrance on land. The existence of a road on land is an encumbrance upon it,3— a breach of a covenant of warranty. For an old location, damages may be recovered on the warranty. For a new location, damages must be claimed from the public, notwithstanding the new location was to take the place of the old road discontinued. If a part only was discontinued and newly located, the damages should be divided, and be sought both from the public and the covenantor.* § 274. Ability of public to maintain road. In determining whether an occasion exists for a new highway, the legislature allows other considerations besides the public exigency to enter. There is a burden on the town through which the road will run, of constructing and maintaining the road. It is not proper that a few individuals shall, by simple petition, impose upon the public the burden of a useless road, and hence the town may object;5 and for this purpose may show its financial condition and its tax-list 1 Goodwin v. Commissioners, 60 Me. 328; Treat v. Middletown, 8 Conn. 243. 2 Kramer v. Clatsop County, 6 Oreg. 238. 3 Hampton v. Coffin, 4 N. H. 517; Herrick v. Moore, 19 Me. 313. 4 Herrick v. Moore, 19 Me. 313. 5 Stinson v. Dunbarton, 46 N. H. 385; Dudley v. Cilley, 5 N. H. 558; Lin blom v. Ramsey, 75 Ill. 246. 305 |