
    ROADS.
    [Hamilton Circuit Court,
    February, 1893.]
    Ludlow et al. v. Dies et al.
    Width oe Road Laid Out Previous to The Act oe 1824.
    Where a road has been laid out .nd used previous to the act Of February 26, 1824, which act authorized all ©ads to oe sixty 'eet in width, a proceeding by the county commissioners under section 3 of .he act of March 14, 1831, authorizing a resurvey of the road and a return of the plat thereof, would not have the effect to widen the road to sixty feet.
    Appeal.
    
      Gerard, Lampe & Statto, for Plaintiffs.
    
      Spiegel & BromweM, for County Commissioners.
   Smith, J.

We think the plaintiffs are entitled to the relief prayed for. The evidence shows that the North Bend road has been in use' as a public highway for more than seventy-five years, and during all of that time has been on substantially the same ground, and enclosed by fences occupying practically the same position as those on the ground at the commencement of the suit in 1890, and the usual and average width of the road between the fences has been about forty feet. The trustees of the townships through which it passes, acting under the direction of the county commissioners, were about to open it to a width of sixty feet, and to tear down the fences standing within the additional ten feet on either side of the center line of the road, and cut down the trees and other obstructions thereon.

General Cary- testifies that in his boyhood it was reported -to be a territorial road. There is, however, no record or-other proof showing where or how it was established or opened. If it was done by proceedings under the acts of the territorial legislature, or after the organization of the state government in 1802, the laws of neither required a county road to be of any particular width until the statute of February 26, 1824, when, for the first time such roads were required to be sixty feet wide. There can be no presumption, then, as against the facts shown, that the road ever was established sixty feet wide.

The proceedings had by the commissioners in 1841-2 had no effect whatever to widen the road to sixty feet. That was simply a proceeding under section 8 of the act of March T4, 1831, then in force, without notice to any one to resurvey the road” and return a plat and survey thereof. This was done by the viewers and surveyor named, and the plat should simply show a survey'of the center line of the road by course and distance, but with no ’statement or finding as to its width. This report being favorable to the establishment of the road as marked, it was approved by the commissioners; it was ordered that the plat be recorded, and the road established as a public road. This could not have the effect to widen the road as it then stood to sixty feet, and it did not purpo: t to do so; and it is conceded by counsel for defendants that no other , Jeps have ever been taken which had the effect to establish the width a the road at sixty feet. Decree accordingly.  