
    *Henry Arnold v. Jonathan Flattery.
    "What sufficient proof to sustain a road laid out and used for many years.
    This cause was adjourned from the county of Fairfield. It was an action of trespass, in which a verdict was found for the defendant, and a new trial moved for, upon the ground of the admission of irrelevant testimony. The following state of facts was agreed by the parties:
    The declaration in this ease, lays the trespass to have been committed on the southwest quarter of section No. 1, township 15, range 19. The plea alleges that the defendant was a supervisor of a certain highway passing through and upon said tract of land, and that he entered upon- the same, within and upon said highway, in the lawful discharge of his duty as supervisor, to repair said highway, and that he committed no unnecessary injury, etc. Replication : That there was not a public highway passing through and upon said tract of land, leading from Lancaster, in said Fairfield ■county, to Granville, in the county of Licking, as alleged in the j)lea, etc. Upon which the defendant took issue.
    Upon the trial, the defendant offered in evidence, a book styled, “Records of Roads — Fairfield County;” admitted by the plaintiff to be the record book of roads for said county, containing the following entry:
    “ To the honorable commissioners of Fairfield county, now sitting in the town of Lancaster, June session, 1806 : We, the persons appointed by order issued out at November session, 1805, to view and survey a road from Mount Yernon, on Owl creek, by Gran-ville, on Licking, to Lancaster, do report that, in pursuance of the said order, we have viewed, surveyed, and do now return for public use, the same; the courses and distances are as follows, to wit: from the south end of Market street, in Mount Yernon, thence” .(here follow the several courses and distances to the termination of the road), “at the north end of Second street, in the town of Lancaster,” to which are appended the following names: James Wells, Moses Powell, Robert McCleland, viewers; Thomas Cissna, ■surveyor.
    *Then follows a-draft or plat of a road from Mount Yernon, •on Owl creek, by Granville, on Licking, to Lancaster, and also the following entries:
    “Recorded, May 21, 1816. Michael Garaghty, secretary to commissioners.”
    “ These certify that the above draft is agreeable to the courses .and distances expressed in the foregoing report. Thomas Cissna, surveyor.”
    The defendant further gave in evidence, by parol, that he was supervisor, etc.; that upward of twenty years ago, a road was laid out by the above-named viewers and surveyor, which road after•■•~rard was known by the name of the Granville road, leading from Lancaster to Granville; that the road so laid out passed along the western boundary of said quarter section, and partly on that adjoining.
    After the record was read to the jury, and the parol testimony aforesaid was given, the plaintiff moved the court to overrule the admission of the record, unless accompanied with other documentary proof of. the petition for the road, the appointment of the viewers, their report, and the proceedings of the commissioners confirming .and establishing the road, etc. But the court allowed the evidence to go to the jury, with leave to the plaintiff to move for a new trial, in case the verdict should be against him; and instructed the jury that the record offered was of itself sufficient proof of the establishment of the road. Other evidence was offered by the plaintiff, tending to prove the trespass to have been committed on parts of the land different from that upon which the road was laid out, as proved by the parol evidence. But the court overruled -the evidence, as being inadmissible under the issue.
    It was also proved that the road laid out as aforesaid was subsequently opened and used; but that at or near the corner of said tract of land, the road as opened, instead of passing along the line of the land, as laid out, diverged, and passed angularly through it; that the road thus opened-was used for a number of years, and improved as a public highway, during which time the land remained unimproved; that subsequently the plaintiff entered upon the land and made an inelosure, including that part through which the road *passed, as opened, at the same time opening a passage for public use along the line where the road was proved to have been laid out. Also, that the defendant afterward, as supervisor, entered upon the line of the road as first opened, and removed the fencing by which it had been shut up, which was the act of trespass for which the suit is brought.
    H. Stanbery, for the new trial.
    H. H. Hunter, against it.
   By the Court :

Where a road has been laid out in the manner jirescribed hy law, opened and used many years, it can not be allowed that it shall be suddenly closed by any individual through whose land it passes, on the hypothesis that the road used does not exactly follow the courses and distances of the recorded survey. Nor can it be required, after the lapse of many years, that-to sustain a public road every preliminary step directed to be. taken in establishing it must be proven by existing papers or records. In this case the court admitted the record and parol proof of the opening and using the road. The record was admitted to establish the fact that the road had been applied for and ordered; the proof of the opening and use, to show where it was actually opened and used. We think that in this there was no error. A new trial must be. refused.  