
    *Carpenter and Others v. Sims.
    May, 1832.
    Roads — Petition—Failure to State Purpose of Road-Waiver of Objection. — Tho' authority is given to the county courts to open only such new roads as may be wanting for a public right of way to some one or more of the places mentioned by the statute, 2Key. Code, ch. 236, S 1, yet the purpose for which the road is wanting, need not be stated in the petition of the applicant, if it appear in any other part, of the record, or be proved to the court; and if this was a defect in the petition, the. parly opposed to the application having appeared, and prayed an ad quod damnum, waived the objection.
    Same -Inquest — When Notice of Need Not Be Given.— The party opposed to opening a new road, appears and prays an ad quod damnum, which the court awards, and appoints a day for holding the inquest; the defendant shall be presumed to be present in court at the time the writ is awarded and the day of inquest appointed; so that the sheriff need not give him notice of the day of holding the inquest.
    Same — Authority of Court to Erect Gates across. — The authority of the county courts to allow gates to be erected on a public road, to save fencing to the owners of lands thro' which the road passes, applies to cases of roads already established: the courts have no authority to order gates to be erected on a road ordered to be opened, to save the county the expense of making compensation to the owners for the additional fencing' which such new road will render necessary.
    Sims made application to the county court of Madison, to have a new road opened “from Michael TJtz’s to. Hughes’ river” in that county, without alleging, that the way was wanted for the convenience of travelling to any of the places mentioned by the statute concerning roads and landings, 2 Rev. Code, ch. 236, ¾ 1, p. 233. And thereupon, the court appointed viewers, to view the proposed road, and to report to the court, the conveniences and inconveniences, as well public as private, that would result from opening and establishing the same.
    *The viewers reported, that the road was proposed to be opened “from Michael Utz’s to the main road near Hughes’ river,” through the lands of one Mrs. Klugh, and of the German Lutheran Church, describing its course very exactly; that the opening of the road could produce injury tono other persons, and Mrs. Klugh had no objection to the opening of it through her land; that the road would be a great convenience to the petitioner, Sims, to the neighbourhood, and to the public generally (without stating for what purpose); and that they had also viewed the way along which the present road passed, and were of opinion, that it would be impracticable to make it passable for loaded wagons.
    This report of the viewers being returned, the court ordered Mrs. Klugh and Carpenter and others, trustees of the German Lutherans to be summoned to shew cause against the opening of the proposed road. The trustees, Carpenter and others, appeared to contest the opening of it through their land; and upon their motion, the court, in pursuance of the statute, Id. | 2, awarded a writ of ad quod damnum, to be executed on a particular day appointed in the order.
    The sheriff proceeded to execute the writ on the appointed day, without giving the trustees, Carpenter and others, any previous notice of the time of holding the inquest. Aud a jury, regularly impaneled and sworn, by their inquisition found, that the proposed road, if opened thirty feet wide, would occupy four acres of the laud of the German Lutherans, which they valued at 24 dollars, and would require additional fencing there, estimated at 150 dollars : that, if the road should be opened only fifteen feet wide, it would occupy only two acres, worth 12 dollars: that a road fifteen feet wide, with three gates erected, would be sufficient and satisfactory to the petitioner, vSims, and all others interested in the road, the cost of which gates they estimated at five dollars each, and by the erection of the gates, no additional fencing would be necessary : that the opening of the *proposed road would afford the petitioner, and many others of the neigh-bourhood, the only way to their nearest meeting house and merchant mill: and that the plantation [of the German Lutherans] would nq.t be injured, in the least, by opening the road.
    Upon the return of this inquisition, Carpenter and others, the trustees for the German Lutherans, moved the court to quash it; but the court overruled the motion. And then, upon a hearing of the parties, and of the evidence upon both sides, the court was of opinion, that the road ought not to be opened and established, and therefore dismissed the petition. Sims appealed to the circuit court.
    There, the witnesses for both parties were again examined; but, neither party desiring it, the testimony was not stated on the record, according to the statute, 1 Rev. Code, ch. 64, | 18, p. 194. The circuit court was of opinion, that the county court erred in refusing to open and establish the road, according to the terms of the inquisition of the jury; and, therefore, reversed the order of the county court; and, proceeding to make such order as the county court ought to have made, ordered, that the road should be opened and established from Utz’s along the course proposed, through the lands of Mrs. Klugh and of the German Lutherans, to the main road near Hughes’ river; and that the several sums found in the inquisition, as an equivalent for the land condemned for the road, and for the necessary gates (if they should be allowed by the county court, being summoned for the purpose) or for the fencing, should be levied for, and paid to, the trustees of the German Lutherans.
    *The trustees, Carpenter and others, applied to this court for a supersedeas to the order of the circuit court; which was allowed.
    In the argument by Stanard, for the plaintiffs in error, and Briggs .for the defendant, Stanard made three objections to the proceedings, and the order of the circuit court founded thereon.
    1st Obj. The statute gives the county courts jurisdiction to open new roads through the lands of individual proprietors, only when such roads are wanted for the convenience of travelling to some of the places specified in the statute ; and Sims, in his application for the road in question, did not allege that it was wanted for any of those purposes: therefore, the county court ought not to have appointed the viewers, and the proceeding was erroneous in the very first step.
    Answ. The objection comes too late. Besides, though the «tatute gives the • authority to open new roads only for the purposes therein specified, and the county courts ought not to open such roads, unless it appear that they are wanted for such purposes; yet, it is not required, that the applicant shall state the purpose in his petition. It is enough if he make it appear to the court by proof. Here, the purpose does appear on the record: the inquisition of the jury finds, that the proposed road would afford the petitioner, and many others in the neighbourhood, the only way to their nearest meeting house and merchant mill.
    Reply. The writ of ad quod damnum gave the jury no charge to make inquiry upon that point: therefore, that finding in the inquisition was, at most, only an ex parte affidavit of the jurors, which was not evidence.
    2nd Obj. The sheriff did not give notice to the parties, through whose land the road was to be opened, of the time of holding the inquest; which the statute expressly requires, and that, notwithstanding the writ of ad quod damnum is awarded always at the instance of the party whose land is *to be condemned for the way, and the court is required to appoint a day for the execution of the writ. 2 Rev. Code, ch. 236, § 2. It does not follow, that the party who pray's the writ, is present in court in person.
    Answ. If the parties have notice of the time of executing the writ, it is immaterial how it is given to them. Here the parties appeared to contest the opening of the road, and prayed the writ of ad quod damnum; and it must be presumed, that it was ordered in their presence, in open court, to be executed on the particular day appointed in the order. And the writ was executed on the day appointed. The statute requires the sheriff to give notice to the proprietors of the land, only in case they are not present in court, at the time of the order made for the writ of ad quod damnum.
    3rd Obj. The 21st section of the statute giving power to the county courts to permit gates to be erected across public roads, and to revoke the permission at pleasure, relates to roads already established, where the proprietor has been compensated for the land appropriated to the way, and for the additional fencing, which the court may, at its pleasure, put him under the necessity of keeping up. The power is given, obviously, to be exercised only at the instance of the proprietor of the land, to save fencing. The court, in opening a new road, cannot, in order to spare the county the expense of making compensation for the additional fencing which the proprietor of the land may, at any time, and at the pleasure of the court, be obliged to keep up, order gates to be erected. The order of the circuit court, to open the road, and then to levy, and pay to the proprietors, the estimated expense of the fencing, or of the necessary gates, if allowed, is with respect to the latter alternative, wrong in principle. This alternative also makes the order uncertain, conditional and interlocutory.
    Answ. This is a point in which Sims and the other persons who want this new road, have no interest: it is a question between the plaintiffs in error and the county. Therefore, *if the order is right in other respects, but must in this particular be corrected, the defendant in error must still have his costs, as being the party substantially prevailing in this court.
    
      
      Roads — Petition—Failure to State Purpose of Road-Waiver of Objection. — On this question the principal case is cited in foot-note to Lewis v. Washington, 5 Gratt. 265; Jeter v. Board, 27 Gratt. 916.
    
    
      
      The statute provides, “That where any person or persons shall make application to any county court, to have a new road opened, or a former one altered, within their county, for the convenience of travel-ling to their county court house, to any public warehouse, landing, ferry, mill, coal mines, lead or iron works, or to the seat of government,'' the county court "shall appoint three or more fit persons, to be sworn before a justice of the peace, to view the ground along which snch road is proposed to be conducted, and to report, truly and impartially the conveniences and inconveniences, that will result as well to individuals as to the public, if such way shall be opened” &c. — Note in Original Edition.
    
    
      
      The statute 2 Rev. Code. ch. 236, § 21. p. 240. authorizes “the county courts, when they shall deem it necessary, to permit gates lo be erected across any roads in their respective counties, which shall not be turnpiked nor nsed for the transportation of public mails; and such gates to discontinue, at pleasure ; provided, that no such permission shall be granted by any court, except upon application previously entered of record, and then only when a majority of the acting magistrates of such county shall concur therein, the whole number having heen, by order of such court, previously summoned for that purpose.” — Note in Original Edition.
    
   BROOKE), J.

The objection taken by the counsel for the plaintiffs in error, that Sim’s application for the road, did not designate either of the places, to which, by the statute, he was entitled to have a way opened, is obviated by the motion made by the plaintiffs in error, for a writ of ad quod damnum to ascertain the damages they would sustain by the opening of the proposed road, without making this objection to the terms of the application; especially, as the report' of the viewers describes the proposed road as terminating in the main road near Hughes’ river, which main road must be presumed to lead to some of the places designated by the statute, and the inquisition of the jury, states the proposed road to be the only way to a merchant mill.

The county court erred in refusing to open the road. But the order of the circuit court was also erroneous, in so much as it provides, that gates may be established by the county court. That part of the inquisition of the jury which relates to the erection of gates, was mere surplusage.

Therefore, both the order of the circuit court, and that of the county court, were reversed; and this court proceeding to make such order as the circuit court ought to have made, ordered, that the road should be opened and established, thirty feet wide,, from and to the points, and along the course, designated in the report of the viewers, and that the sums of 24 dollars for the land condemned for the road, and ISO dollars for the extra fencing, should be. levied by the county court for, and paid to, the plaintiffs in error; and that the defendant in error should recover of the plaintiffs in error, his costs in prosecuting his petition in the county court, and his costs expended in his defence upon the supersedeas in the circuit court. But the court gave the plaintiffs in error their costs in this court.  