
    Lewisburg.
    White v. Coleman.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. A County court professing to proceed under the act of 1819, in opening a road, it is not necessary that the record of their proceedings shall shew that the County court had previously dispensed with the act of 1835 in relation to roads, and retained the act of 1819.
    
    
      2. In such a case a party who opposes the opening the road should call for the production of the previous order of the County court dispensing with the act of 1835, and spread the whole evidence on that question, on the record. And if he fails to do so, it will not be presumed in an appellate court, that the County court, though professing to proceed under the act of 1819, acted without lawful authority.
    3. A County court makes an order opening a road through the land of a person who had made himself a party, and opposed the opening of the road; but the Court omits to direct the damages assessed to this party to be paid to him. At the next term, by the consent of the applicant for the road and the contestant, the order is set aside, and the cause reinstated on the docket. Held : That the order reinstating the cause by the consent of the parties was proper.
    4. Persons unite in the petition for the opening of a road, but they do not become parties on the record. Some of them are appointed viewers of the route of the proposed road. Held : That this is not good ground for quashing the proceedings.
    5. It is proper that the County court should direct that the damages assessed by the jury to the owner of the land through which the road is opened, and the costs of the inquest, should be provided for and paid out of the county levy. But it is error to direct all the costs of the applicant for the road to be thus provided for and paid. His costs, except the costs of the inquest, should be recovered against the contestant.
    In June 1839, Joseph White applied to the County court of Jackson to open a road from the Ohio river road to Pond creek in that county. The Court proceeding as stated in the order, under the 1st and 2d sections of the act of 1819, appointed viewers to view and mark the way for the proposed road, and report upon its comparative convenience and inconvenience. These viewers reported in favour of the road: And the Court at the January term for 1840, being of opinion that the road applied for would be convenient, directed a summons to issue to the proprietors of the land through which it was proposed to be made. And the applicant then producing evidence of the consent of all of said proprietors except Robert Steel, who was not an inhabitant of the county, and who had no known agent therein, and Thomas Coleman, the Court made an order establishing the road, except so much of it as passed through the lands of Coleman; and the order directed that he should be summoned to the next Court to spew cause; if he could, why the road should not be opened through his lands.
    At the February term of the Court, Coleman appeared and moved the Court to quash the view had in the cause, and to set aside the order appointing the viewers, and the subsequent proceedings so far as his land was affected by them, for errors apparent on the face of the proceedings; and also because the persons appointed viewers of the route for the proposed road were petitioners for the road; but the Court overruled the motion. He then asked for a writ of ad quod damnum, which was awarded, and which was taken and returned to the March Court: the jury having assessed the damages which he would sustain by opening the road, at 29 dollars 58 cents.
    At the April term of the Court an order was made establishing the road; but no order was made directing the damages assessed by the jury to be paid to Coleman. And at the June term an order was made by the consent of White, the applicant for the road, and Coleman, that the order made in this cause at the April term should be set aside, and the cause be reinstated on the docket, and hereafter tried as if said order had never been made : And the cause was continued until the next term of the Court. At the next term of the Court no order was made in the cause.
    At the December Court the cause came on for trial, when the Court established the road; and further ordered that the sum of 29 dollars 58 cents, the damages assessed by the jury for Coleman, and the costs of the inquest, and also all the costs of the petitioner Joseph White, should be provided for in the next county levy, and should be paid to the persons respectively entitled thereto.
    
      
      Coleman applied to the Circuit court of Jackson county for a supersedeas to the judgment of the County court, which was awarded. When the cause came on to be heard there, the Court expressed the opinion that the County court erred in proceeding under the act of 1819, which had been repealed by the act of 1835, without shewing that the power to suspend a part of the act of 1835, and thereby give operation to the first and second sections of the act of 1819, had been exercised as prescribed by the act of 1835; and without which the County court ought to have sustained the motion of the contestant Coleman to quash the proceedings. Therefore the judgment of the County court was reversed, with costs: And the cause was remanded with directions to the County court to quash the proceedings, and dismiss the plaintiff’s application with costs, unless he should produce and incorporate such proceedings had in the County court as suspended the operation of the 1st and 2d sections of the act of 1835, and gave effect to the 1st and 2d sections of the act of 1819. From this judgment White applied to this Court for a supersedeas, which was awarded.
    Fisher, for the appellant.
    
      B. H. Smith, for the appellee.
    
      
       The act of March 3d, 1835, Supp. Rev. Code, ch. 77, § 27, provides, That it shall be lawful for the several County courts of this Commonwealth, the justices of said Court being previously summoned for that purpose, and a majority of the acting justices being present, either to reject or at any time to dispense with the provisions contained in the first and second sections of this act, requiring the appointment of commissioners of roads, and to retain the mode of appointing viewers, as prescribed by the act, entitled, “ an act to reduce into one the several acts concerning public roads, and for establishing public landings,” passed February the second, eighteen hundred and nineteen.
    
   Baldwin, J.

delivered the opinion of the Court.

It seems to the Court from the record in this case, that the County court proceeded under the provisions of the road law of 1819, 2 Rev. Code, ch. 236, p. 233: and whether they had authority to do so was a question of fact dependent upon evidence. The 27th section of the act of 1835, Sess. Acts of 1834-5. p. 68, and subsequent statutes, made it lawful for the several County courts, in regard to the establishment of roads, the justices being previously summoned for the purpose, and a majority of the acting justices being present, to dispense with the provisions of the act of 1835, and to retain those of the act of 1819. It was competent for the contestant in this case to require proof of the fact that the County court had made such a general order, and if he had done so, it would have been incumbent upon the applicant to have produced the order. Whether proof of the fact was required or given does not appear, for the evidence upon which the County court acted has not been made a part of the record, by any bill of exceptions, or otherwise. It may have been that such a general order was made prior to the application in this case, and that it was given in evidence at the time when the Court decided to establish the road, or at some previous stage of the cause; or it may not have been formally produced, because of the concession or notoriety of its existence. If the contestant relied upon the absence of the proper evidence on this subject, he ought to have called for its production; or, upon the question whether the road ought to be established, to have spread the whole evidence bearing upon that question on the record. Having failed to do so, it cannot be presumed that the County court, though professing to proceed under the statute of 1819, acted without lawful authority. The objection to the authority of the Court now made was in no wise presented by the contestant’s motion to quash the proceedings for errors apparent on their face, because the law does not require that a copy of the general order of the Court dispensing with the act of 1835, shall be incorporated into the proceedings.

It further seems to the Court, that the County court also properly overruled the motion to quash the proceedings, so far as based upon the fact that the viewers appointed were petitioners for the road, inasmuch as it does not appear that they were parties to the controversy ; on the contrary, it is shewn by the record that the plaintiff in error here, was the sole applicant for the road, whoever may have been the other petitioners, and a mere memorial from them did not disqualify them from acting as viewers.

It further seems to the Court, that the cause was properly reinstated in the County court, on the application of the parties to the controversy, by the order of June 1841 ; that there has been no discontinuance of the case, and that the County court decided correctly in establishing said road, and directing the damages assessed by the jury for the contestant, and the costs of the inquest, to be provided for and paid out of the county levy; but that it erred in directing that all the costs of the applicant should be so provided for and paid, in which respect the judgment of the County court is nugatory, and therefore prejudical to the applicant, who ought to have recovered his costs, except the costs of the inquest, against the contestant.

It therefore seems to the Court, that the judgment of the County court is erroneous, and was properly reversed by the Circuit court, but not for the reason assigned by that Court; and that the judgment of the Circuit court is erroneous in the directions to the County court given in the remanding of the cause.

And it is considered by the Court, that the judgment of the Circuit court be reversed and annulled, with costs to the plaintiff in error here. And this Court proceeding to render such judgment as the Circuit court ought to have rendered, it is further considered, that the judgment of the County court is erroneous, and that the same be reversed and annulled, with costs of the Circuit court to the plaintiff in error here. And the cause is remanded to the County court, with directions to establish the road, direct the damages assessed by the jury for the contestant, and the costs of the inquest, to be provided for and paid out of the county levy, and the other costs expended by the applicant, to be paid by the contestant.  