
    Sidney Beckwith v. Ezra Beckwith and others.
    Under the statute of January 27, 1853 (2 S. & C. 1293, see. 28), authorizing a review and survey of roads where the place of beginning, or course of the road is uncertain, no power is given so to change-the road as to include private lands not before constituting part of the-road.
    As against the owner of such lands, the record of the review and survey of the road is only prima facie evidence of the correctness of tho survey, and may be rebutted by the evidence showing that it exceeds-the limits of the old road, and includes his private lands; and evidence of the long-continued user of the road, within lines which exclude the land in controversy, is competent for that purpose.
    Where such private lands are included in the road by the review and survey, the supervisor is liable in trespass to the owner for entering upon. the land and digging up the soil, and he is not protected by the record of the survey, and the declaration of the statute, that “ the road, as surve3'ed, shall he considered a public highway.”
    Reserved in the District Court of Ashtabula county.
    This was an action of trespass for entering plaintiff’s land and digging up the soil. The defendants, who were the supervisor of roads and highways and the hands working under him, justified on the ground that the locus in quo -■was part of a public highway. 'Whether it was part of a public highway was the only issue in the cause.
    On the trial, the defendants gave in evidence the record •of the survey and establishment of a state road, made in 1811. This record describes the road as beginning at a ■named point, and running thence, by various courses, for -several miles, to a terminal point, giving the intermediate objects and marks denoting the line, and describing the -road as being sixty feet wide, and lying on. the south side of that line, but without indicating any actual survey or marking of its southern or of its central line.
    The defendants also gave in evidence the record of a review" and resurvey of a part of this road, made in 1861, under the statute authorizing such reviews and resurveys, in cases where “the place of beginning or true course” of •such roads “ shall be uncertain.” 8. & C. 1293, sec. 28. This resurvey, like the survey of 1811, describes a single line, but does not declare or show on which side of the line the road lies, or whether the line is the middle thread of the road; nor does it affirmatively or expressly appear whether the-line of the resurvey is identical with'said north line of the original survey, or is a new line run at the time •of makiug the resurvey. By the record, it appears also that the committee made their report of the resurvey in July, 1861, and the same was accepted by the commisBioners, and that in December, 1861, without any new order ■or authority from the commissioners, they made a supplemental report, in which they slightly changed the line, and resurveyed and remarked the same, and that it is this last resurvey, and not that made in July, 1861, which was approved and ordered to be recorded by the commissioners; and it is the road, as located by this survey, that the commissioners established and declared to be the public highway. In this report the viewers say that they found a monument of the original survey, and they adopted and described it as one of the terminal monuments on the line of their resurvey.
    In 1867, another review and survey of this part of the-road was had, purporting to be under the same statute. The report of this review and resurvey simply repeats the description of the line surveyed by the reviewers in November, 1861, as and for the road, and says that the reviewers “found” the monuments at the termini of-the part of the road so resnrveyed “ to be in the center of the road,” and that they resurveyed and marked the line “ as the center line of the road.”
    The place of the alleged trespass is north of the line described in these last surveys, and within the distance of thirty feet therefrom, so that, if this line be the center line-of the road, then the locus in quo is within the road; but if it is to-be regarded as identical with the original northern boundary line, then the locus in quo lies north of the legal road, unless the viewers had power to change its location..
    These records were read in evidence against the objection of the plaintiff', and he excepted to the order of the court admitting them.
    The plaintiff then offered to prove by parol testimony,, that the origiual road, as opened, worked, and used by the public, lay entirely south of the line in question, and did not include the place of the alleged trespass. He offered, to prove that the trees growing upon it were deadened in 1813; that the timber was cut and removed from it in 1837; that it was turnpiked in 1852 ; that it was fenced;, and that from 1813 to 1867, it was worked and traveled by the public as a road lying south of said line. This evidence was objected to by the defendants, and rejected by the court, aud the plaintiff excepted to the order rejecting the same.
    After the evidence had closed, the plaintiff’ asked the court to charge the jury, that if the place of the alleged trespass was outside the limits of the road as actually opened and used from 1813 to 1867, he was entitled (o recover. This the court refused, and, on the contrary, instructed ,?the jury, in substance, that the records .so given in evidence were conclusive evidence of the location and lines of the road, and that they could not be impeached by parol evidence. To which refusal and charge the plaintiffs excepted.
    The jury found for the defendants, and judgment was entered accordingly. To reverse this j udgment the plaintiff prosecuted his petition in error in the District Court, and the cause was there reserved for decision here.
    & A. Northway, for plaintiff in error:
    The record of the review made on the 11th day of June and 8th day of July should have been excluded. The committee were directed -by the county commissioners to proceed on the 11th day of June, 1861, or within five days thereafter, to review and resurvoy said road, while they did not, as a matter of fact, resurvey said road until the 8th day of July.
    The court should have excluded the supplementary report of a survey made on the 23d day of November, 1861, by the same committee which made the Survey on the 8th day of July, 1861. The authority to review and resurvey a road is conferred by section 28 of the statute. S. & C. 1293. The committee which made this. .supplementary report had not been appointed to make it.
    This supplementary report was, in no sense, the report of a regularly appointed committee, such as the statute contemplates. Hence the commissioners had no legal right to go through the form of adopting such report, and the fact that they ordered it to go upon the record does not make it legal, and the pretended record is void. Besides^ the committee was not composed of “ disinterested freeholders,” they having made one report already.
    The court should have excluded the record of a resurvey of the same identical road made on the 20th and 21st clays of August, A. D. 1867. Ou what principle of law can the county commissioners authorize the resurveying of an old road so many times, as was done in this instance? It is only, when “ the place of beginning or true eours^ of any state or county road shall be uncertain by reason of the removal of any monument, etc., or from any other cause,” that the commissioners have any jurisdiction in the matter, and how can it be said that “the place of beginning, etc.,” are uncertain, when these same commissioners have recorded the report of two committees, showing that all those ■matters and things were known. Again, this report showed that the committee exceeded its powers by attempting to determine that the line run by them should be the center of the road; and this formed the only difference between the two reports.
    The defense having given evidence tending to prove that the alleged trespass was committed within the road as originally surveyed, the plaintiff offered evidence tending to prove that said trespass was done outside of the original lines of the road; hut the court refused to admit said evidence of the plaintiff, upon the ground, as shown in the •charge to the jury, that the record of the resurveys conclusively determined the road lines. Can it be that the ex parte proceedings of county commissioners can have that effect? It will be noticed that the statute referred to does not provide for the giving of notice to any one ; and the records show that no notice whatever, of any of the proceedings for the resurveys of the road, was given to any person.
    Under the section of the statute above referred to, the only duty to be performed by the committee is, to “view and survey said road (thereby meaning the road as originally laid out) and the same correctly mark throughout, as in the case of new roads.” See 19 Ohio St. 78. It would seem, under this authority, that the record of such a committee would amount to no more than prima facie evidence that the committee had found the old road, which evidence may. be contradicted by parol evidence. The evidence offered and excluded tended to prove the claim of the plaintiff, and it was error to exclude it. Belden v. Lamb, 17 Conn. 449.
    If such evidence was wrongfully excluded, then the •court erred in refusing to charge the jury, as requested by the plaintiff, and also in giving the charge which was given.
    
      Simonds § Caldwell, for defendants in error:
    The record of the original survey shows that the road Begins at the state line, and going westward, in a zigzag •course, follows, in Colebrook township, one straight course for four miles seventy-nine chains and fifty links, and the •spot in controversy is in or along this course.
    All the evidence (other than the records) offered at the trial by the defense, tended to show that all the work dono •on the road by the defendants was within the line of the road, as originally surveyed and established, and as found -and designated by both of the resurveys.
    I. After the defendants rested their ease, the plaintiff’ proposed to prove by Perry GL Beckwith, Frederick P. Brown, Abner Congdon, that when the road was girdled in 1813, cut and cleared out in 1837, and turnpiked in 1852, it was girdled, cleared, and turnpiked several feet farther south than where it was, in fact, originally surveyed ■and established, and where it was found to be by both re■surveys.
    The only tendency such testimony could have would be to show that the men who girdled, cleared, and turnpiked the road blundered, and did their work outside of where the road was originally located. Nor did the plaintiff' claim to have any proof that would tend to show that this girdling, etc., was done upon the line of the road as originally surveyed and located.
    
      II. The plaintiff’s counsel asked the court to charge the jury, “ that if the road is now worked and traveled where it was marked in 1811 by the committee who located the-road,” etc. Now, thus tar they had no right to ask the court to charge the jury thus, because there was no evidence given, and none offered, to show that the road “is now worked and traveled where it was marked in 1811 by the committee who located it.” It was a mere abstract proposition; it is not ground of error in this case, for it is not in this case. But the court did them more than justice in this respect, for the jury were instructed “ to look to the testimony introduced by the parties, to determine whether the trespass complained of was committed outside-of the limits of the road as originally surveyed.”
    III. Under paragraph 28, section 10, of the road law, 2 Swan & Critchfield, 1293, a resurvey of this road was ordered by the commissioners of Ashtabula county in 1861r and that record was introduced on the trial by the defendants, and is exhibit B in the bill of exceptions. This resurvey of 1861 finds the road just exactly where it was-originally located, as shown, by the original survey. But as there was a claim set up, that as the surveyor and committee only run one line, that must be taken to mean the-north line of the road; a subsequent resurvey was made in 1867 as shown by exhibit C, designating that line aside center of the road.
    
    The design of the statute under which these resurveys were made, is to settle questions of doubt and determine-where the road is. Its provisions are peremptory that after the proceedings of the reviewing committee have been approved by the commissioners, the.road so resurveyed shall be considered a public highway.
    
    ■ We submit that these records are conclusive evidence of the true location of the road, and that no parol proof could have been competent to thus# collaterally impeach them.
    The supervisor had no other guide than the line established by the resurveys, and he pleads and proves that as-
    
      a justification. It would seem that if this statute is not effectual for his justification and protection, then it is worse than a nullity — a mere trap leading the supervisor into trouble and costs.
   Welch, C. J.

As a majority of the court incline to understand the records of these surveys, the defendants, by giving them in evidence, disprove their defense, by showing that the place of the alleged trespass is north of the north boundary line of the original road. The original survey ran and marked but a single line — the north boundary line — and placed all its monuments and marks upon that line. The resurvey of November, 1861, in like manner runs and traces but a single line, and on its face seems fo adopt as monuments or marks upon that line some, or at least one, of the monuments of the old survey. To say the least, as it seems to a majority of us, the question whether the line surveyed and established in 1861 is identical with the original line run in 1811 is a mere question of construction, to be determined by an inspection of the records, and not by a committee of reviewers. If that be so, then there is nothing in this review of 1867 but a declaration of the reviewers, by which they attempt to put a construction upon the record of the surveys made in 1861. They substantially retrace the line ran and established in 1861, calling it the “center line” of the road, and declaring that they ran and marked it as such. The object of the statute authorizing the review is to find the old road, and not to lay out or establish a new road, either in whole or in part. And if, as a majority of the court iucline to hold, the line described in the survey of November, 1861, is identical with the original north line of the road, it was not in the power of the reviewers of 1867 to extend the road north of that line, and the survey of 1867 would go for naught. The viewers had no authority either to put a construction upon the record of the previous surveys, or to remove the road thirty feet to the north, and thus locate it upon private property.

But suppose this construction of the records to be 'wrong, and that these resurveys are to be understood as ■laying down this center line as and for the center line of the old road, and not as identical with its original north line. How stands the case then? Is the plaintiff, an adjoining proprietor of land, and no party to the proceeding, concluded by the resurveys? Can his private property be thus taken against his will, and without compensation? We think not, and that the court erred in rejecting testimony ■offered by him tending to impeach the resurveys, and in instructing the jury, as we understand the court to have done, that these resurveys were conclusive evidence of the lines and location of the legal road. True, the court did not say in terms that the resurveys were conclusive, and yet the instruction given, to the effect that the records were conclusive, and could not be impeached, in connection with the fact that the court had already excluded all testimony tending to impeach the survey's, must have been understood by the jury in that sense. In a proper sense, it is true that the records can not be impeached. They are conclusive ■evidence of the fact that the surveys were made, but not of their correctness and legality.

The provision of the statute in question, authorizing the viewers to “ straighten ” the road, can not be understood as authorizing the condemnation and appropriation of new lands to the public use, without notice or compensation to the owner. Nor can the declaration of the statute, that ■the road,'as so resurveyed, shall thenceforth “ be considered a public highway,” have that effect. To give the statute such an interpretation would be to make it unconstitutional. These provisions must be understood with the qualification that private property is not to be invaded by the resurvey or re-establishment of the road. If the road is straightened, it must be straightened in a form not to interfere with private property ; and as between the owners of such property and the public, the resurvey is only prima facie evidence of the lines and boundaries of the original ■road, subject to be impeached by evideuee, clearly showing that the resurvey includes private property not embraced in* the road.

But it is contended that the supervisor, being a ministerial officer, should be protected by the record of the survey, and the declaration of the law that the road, as resurveyed and established, “ shall be considered a public highway,” and that the plaintiff must seek his remedy otherwise than by an action of trespass against the supervisor» We think otherwise. The case is not analogous <to that of a supervisor who has a warrant to open a new \pr of a. sheriff' who holds a writ of execution. Here, m ’er is given, and there is no superior or controlling party '^r tribunal, to whom the plaintiff’ can look for redress, or by enjoining whom he can effectually prevent the mischief.. To hold that the plaintiff’can not have his action against the supervisor, as he might have it against a traveler, or any other trespasser upon his private lands, would be to-hold him remediless.

We think the court erred in its instruction to the jury,, and in rejecting the plaintiff’s testimony tending to show that the locus in quo was outside the original road; and to-a majority of us, it seems that the fact is sufficiently shown-by the records themselves.

Judgment reversed, and cause remanded for further proceedings.  