
    Morgan Hays et al. v. A. J. Lewis et al.
    1. The maximum width of a county road is limited by law to sixty feet, and the minimum width to thirty feet, and county commissioners, under the provisions of the act of March 81, 1868 (S. & S. 673), giving an additional mode of laying out and improving county roads, have no power to appropriate to that public use, for the width of the road, more than the maximum number of feet; and the provisions of section 5 of the act of May 9, 1868 (amendatory of the act passed March 81, 1868), authorizing the commissioners to determine the width of c-ounty roads laid out under the authority of the act of March 31, does not, in respect to the width of the road, increase the power of the commissioners.
    2. Where a public necessity is shown to exist for a county road, and land is donated to public use for a county road-bed, and accepted by the county commissioners with the understanding of both parties that the road will be laid upon the donated land five rods wide, and the county commissioners cause the road to be laid out over the donated land five rods in width, and the improvement put on that portion of the road costs no more than it would have cost had the road been laid out only sixty feet wide, and no substantial injury or prejudice results to the plaintiffs by reason of the increased width of the road-bed: Held, as neither of the individual plaintiffs are prejudiced in any substantial right by the action of the county commissioners, and a benefit accrues to the general public by the establishment of the road, no sufficient reason appears on account of the width of the road for reversing the final order of the commissioners. .
    3. When error has intervened in the proceedings and final order of the county commissioners in the laying out and establishing a county road under the provisions of the act of March 31, 1868, and the acts amendatory thereof, where jurisdiction over the subject-matter had been acquired as required by the statute, which error is in some degree prejudicial to the rights of the party complaining, but not so materially affecting such proceedings and final order as necessarily to render them void, and they can be modified so as to do substantial justice to the complaining party and allow a complete county road to remain, such modification as will do justice to the individual and promote the public interests is authorized by section 514 of the code, and the act of May 13,1868.(S. & S. 677).
    Error. Reserved in the District Court of Fayette county.
    In May, 1870, A. J. Lewis, and the requisite number of other qualified landholders of Fayette county, presented a petition to the county commissioners of that county, asking them to lay out, construct, grade, and gravel a new road upon a specific route named in the petition, under and by virtue of the provisions of an act entitled “ an'act to authorize the county commissioners to construct roads on petition of a majority of the resident land-owners along and adjacent to the line of said road,” etc., passed by the general assembly of the State of Ohio, March 29,1867, and the acts amendatory of and supplemental thereto.
    Such proceedings were had upon the petition, that in June, 1870, the viewers and surveyor, previously appointed, made a report to the county commissioners, and among other things reported that we “ find the said road will be of great public utility for the following reasons: That said road runs through a very fertile section of the county that has no public road, and will open up said section to market, and will make the said section accessible to Washington, the county-seat. We would, therefore, report that in our opinion the prayer of the petitioners should be granted. . . . We further report that we laid out said road five poles wide from the beginning point for one hundred and twenty-seven poles (127 poles); three poles out of said five poles in width to lie on the north side of the continuation of the center of Market street, and two (2) poles on the south side of the continuation of' the center of said Market street. From this point we established the width of the road four poles wide to the corporation line of the village of Washington, and four poles wide to the northeast corner of the corpoi'ation, and fifty feet wide from the corporation line to the terminus of said road. We submit herewith a list of persons to whom damages had been allowed.” The plaintiffs then filed with the commissioners a protest against the confirmation of the viewers’ report; against any final order for the establishment, construction, or improvement of the road, and denied the power of the commissioners to order the improvement to be made. The commissioners, finding that public utility required the road should be laid out and constructed, confirmed the viewers’ report, and made specific order for the construction and improvement of the road. On the record we find:
    “It is hereby ordered by the board that said road be established on the line and of the width and to the extent set forth in said viewers’ report.
    “And it is hereby further ordered by the board that the lands and lots, and parts of lots, reported by said viewers and surveyor shall be assessed for the construction of said road.”
    Among the lands assessed for the improvement are found the lands of plaintiffs.
    Three hundred and twenty-nine poles of the road are within the corporate limits of the village of Washington. The first one hundred and twenty-seven poles pass through and over the lands of J. S. Bereman, known as “ Bereman’s pasture,” and situate in the northeastern part of the village. Bereman donated five rods by one hundred and twenty-seven rods for a road-bed; and on condition the road should be five rods wide, and he to receive two hundred dollars damages, agreed to build a fence, which he estimated would cost that sum. The county commissioners accepted the land donated, and by due proceedings, Bereman was allowed two hundred dollars as damages.
    Plaintiffs took the proceedings of the commissioners by petition in error to the court of common pleas, where the action of the commissioners was affirmed. A petition in error was then prosecuted to the district court seeking a reversal of the judgment of the common pleas court; and by that court the case was reserved.
    
      R. A. Harrison and M. J. Williams, for plaintiffs in error:
    Whether or not the errors upon which the plaintiffs rely to obtain a reversal of the orders of the commissioners are well taken, depends upon the solution of the question whether county commissioners may legally lay out a road more than sixty feet wide.
    I, By an act passed April 7, 18$5 (S. & S. 690), no county road can be laid out more than sixty feet wide. The provisions of this statute apply to all county roads. Mark the plain, emphatic language of it: “All county roads that shall hereafter be laid out and established shall be not less than thirty nor more than sixty feet wide, and all township roads shall be not less than fifteen nor more than thirty feet wide.”
    And an act passed March 27,1867 (S. & S. 693), provides as follows:
    “ Section 1. That the county commissioners of the several counties shall have power to increase or reduce the width of any of the county roads within their respective counties; and the township trustees of the several townships shall have power to increase or reduce the width of any of the township, roads within their respective townships : provided, that no county or township road shall be widened beyond the maximum limit, or narrowed to less than the minimum limit, fixed by law for such county or township roads.”
    The argument of this cause 'ought to stop with the citation of the above-quoted statutes. Their words are plain, explicit, and unequivocal. Therefore, no court is “warranted in departing from their obvious meaning.” Woodbury Co. v. Berry, 18 Ohio St. 456; Burrows v. Vandevier, 3 Ohio, 383.
    II. The statute under which the defendants in error presented their petition to the county commissioners, does not, either in terms or by necessary implication, repeal the statute prescribing the width of county and township roads. They both may well stand together.
    When the provisions of two statutes are so far inconsistent with each other that both can not be enforced, the later must prevail. But if, by any fair course of reasoning, the two can be reconciled, both shall stand. No court will, if it can be consistently avoided, determine that a statute is repealed by implication. Ludlow v. Johnson, 3 Ohio, 553, 555, 568; 8 Ohio, 44-49; 14 Ohio, 542-544 ; 15 Ohio, 689-703; 16 Ohio, 599-603; 18 Ohio, 368-372.
    Two statutes in pari materia shall stand together, and both have effect if possible. Dodge v. Gridley, 10 Ohio, 173.
    III. In construing the act of 1869 the following rules of construction will be found applicable :
    1. It is well settled that several, acts in pari materia, anc] relating to the same subject, are to be taken and comprised together in construing them. They are considered as having one object in view, and as acting upon one system. The object of the rule is to ascertain and carry into effect the intention; and it is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious. Hirn v. The State, 1 Ohio St. 15-20. And see 13 Ohio, 334-363; 11 Ohio St. 516-523; 13 Ohio St. 532-540; 15 Ohio St. 114-133.
    2. The popular or received import of words furnishes the general rule for the interpretation of statutes. Dwarris on Statutes, 143; Maillard v. Lawrence, 16 How. (U. S.) 251.
    3. When particular words or phrases have in law acquired a fixed legal signification, and are used in a statute, the presumption is that the legislature meant to use them in this legal sense. Turney v. Yeoman, 14 Ohio, 207, 218; Medical College v. Zeigler, 17 Ohio St. 52, 64; Dwarris on Statutes, 274.
    The width and mode of procedure to lay out and establish “ county roads ” have always been regulated by statute in Ohio, and such roads have never been allowed to exceed sixty feet in width. See 3 Chase, 1850; Swan’s Statutes of 1840, p. 796; S. & S. 690.
    There may be public roads, independent of the statutes, established by prescription, dedication, etc.; but in Ohio a “ county road ” is a creature of the statute.
    The term “ county road,” from the legislation of the state, had acquired in 1869, and still has, a well known and understood meaning, and a “ county road ” was known and understood to have certain characteristics by which they were distinguished from state, township, and other roads; and one of the qualities of a county road is the limitation imposed on its dimensions — width.
    The language of the act of 1869, under wdneh the county commissioners proceeded in this case, is as follows:
    “ The county commissioners of any county in this state shall have power, as hereinafter provided, within such county, to lay out and construct any new ‘ county road,’ or to improve any state, county, or township road,” etc. 66 Ohio L. 59.
    Now, clearly the presumption is that the legislature used the term “ county road ” in its accepted and received signification, intending thereby the road known and understood as the county road, as distinguished from state and township roads — in other words, the “ county road ” then provided for by law; and that when they conferred on the commissioners the power to lay out a new county road, the legislature intended it should be such a road as the term imports and none other, viz., a road not less than thirty nor mqre than sixty feet in width.
    The context requires such construction; for in the same sentence that the power is given to the commissioners to lay out and construct new county roads, the power is conferred to improve any state, county, or township road.
    
      H. B. Maynard and Mills Gardner, for defendants in error:
    
      I. The only point relied upon by the plaintiffs in error is this: Hid the county commissioners err in ordering a small portion of the road to be constructed more than sixty feet in width ?
    In support of the affirmative of this proposition they cite a part of the act of April 9, 1865 (S. & S. 690), but omitting, as we think, a very important portion thereof.
    The act is an amendment of sections 1 and 32 of the road law of January 27,1853.
    The first section is amended to read as follows:
    “ Seo. 1. That all roads and highways which have been, or may hereafter be, laid out and established agreeably to law, within this state, shall be opened and kept in repair in the manner hereinafter provided; and all county and township roads shall hereafter be laid out and established agreeably to the provisions of this act. All county roads that shall hereafter be laid out and established, shall be not less than thirty nor more than sixty feet wide, and all township roads shall be not less than fifteen nor more than thirty feet wide ; and in all cases the width of such roads shall be determined by the viewers of the same, as hereinafter provided.”
    
    This section, as amended, must be construed as though introduced into the place of the repealed section. McKibben v. Lester, 9 Ohio St. 627.
    Therefore, “ all county and township roads shall hereafter belaid out and established agreeably to the provisions of this act” (January 27, 1853), and all such county roads shall not be more than sixty feet in width. This prescribes the width of all the roads laid out- under that particular act only.
    The act of March 27, 1857 (S. & S. 693), cited by the plaintiffs, was passed with reference to the general road laws as they then existed; for the proceedings to increase or reduce the width of county and township roads are to be such as then existed for the opening and vacating such roads. It reads as follows :
    “ Sec. 2. That before any county or township road shall be increased in width, as provided in the foregoing section, the same proceedings shall he had in all respects, so far as the same may be applicable, as are now required in regard to the laying out, opening, and establishing of such county or township roads; and before any county or township road shall be reduced in width, as provided in the foregoing section, the same proceedings shall be had in all respects, so far as the same may be applicable, as are now required in regard to the vacation of such county or township road.” S. & S. 693, sec. 106.
    By the act of April 23, 1869 (.66 Ohio L. 59), which was an amendment of the first section of the act of March 29, 1867 (S. & S. 673), power was given, among other things, to improve, in the same proceeding, state, county, and toionship roads, when such roads constitute one continuous road improvement.
    "Was it the intention of the legislature to prohibit the increase of the width of such township roads, and limit such improvement over township roads to fifteen feet where such roads had been established only that width?
    We think not. Because the width and extent of the improvement was to be made to meet the public convenience and necessity, and not restricted by the provisions of a law which contemplated a very limited expenditure of labor and money.
    But the act under which this, road, was constructed is the act of March 29, 1867, as amended in 1868, and again by said act of 1869. S. & S. 673-676; also, 66 Ohio L. 59.
    By these acts an entirely new and different mode of constructing roads is provided, as well as a mode of improving existing roads; but the power conferred on the county commissioners to construct, under said act, an entire new road, was not given till the amendment of April 23, 1869.
    By this road improvement act there is no limit as to the width, but the whole question is left to the sound discretion of the board of county commissioners. Should they fail to exercise a sound discretion in determining the width of the road, or in any other particular, they would undoubtedly be restrained.
    
      The power granted is “ to construct a new county road as provided in said act’’ and such “improvement” to be paid for by assessment on adjacent lands. S. & S. 673, 674, sec. 4.
    The viewers are to examine, view, and lay out the road as in their opinion public convenience and utility require. S. & S. 673, sec. 2.
    They are required “ to report the public necessity of the contemplated improvement, the damages claimed, by whom, and the amount assessed to each claimant, and an estimate of the expense of said improvement, and the lots and lands which will be benefited thereby, and ought to be assessed for the same.” S. & S. 673, sec. 4.
    II. Whatever view the court may take in this case, it has the power, under the act of May 13, 1868 (S. & S. 677), to do substantial justice to the plaintiffs, if any error has crept into the proceedings of the commissioners. 17 Ohio St. 1; 25 Ohio St. 308.
   Ashburn, J.

The questions in this case appear to range themselves in this order:

1. The maximum width of a county road when private lands are appropriated for that public use.

2. The effect when a county road is laid out more than sixty feet in width upon lands donated specially for that purpose.

3. The power of a reviewing court to modify the orders of county commissioners made in regard to the width of such road.

Numerous errors are assigned on the record in the court of common pleas. But two need be considered. They are:

“1. The said board erred in ordering, by its said order, that the report of said viewers and surveyor be confirmed, when the said viewers and surveyor laid out a considerable portion of said proposed road of greater width than sixty feet — that is, one hundred and twenty-seven poles of said road five poles wide* and a part of it four poles wide — ■ whereas, by the laws of Ohio, no county road can be laid out more than sixty feet wide.
2. The said board erred in ordering the lots and lands, and parts of lots, reported by said viewers and surveyor for that purpose, to be assessed -for the expense of constructing said road of said respective widths, some of which exceed sixty feet.”

Ten alleged errors are assigned in the district court. Three of them embrace the whole case, and are:

“1. The said court erred in affirming the said order of the board of county commissioners of July 14, 1870, because they had no authority or power to make the same.
“2. The said court erred in affirming the said orders and proceeding of said board of commissioners ordering the said road to be improved or constructed, when the same was as aforesaid unlawfully ordered to be laid out and established of said respective widths, some of which are more than sixty feet.
“3. The said board erred in ordering the lots and lands, and parts of lots, reported by said viewers and surveyor for that purpose, to be assessed for the expense of constructing said road of said respective widths, some of which exceed sixty feet.”

It is claimed by plaintiffs that the board of county commissioners have no legal power to lay out and establish a county road more than sixty feet wide, and to do so vitiates all the proceedings. On the other hand, defendants claim that under the act of May 9, 1868 (S. & S. 676), the. power of the board in that respect is limited only by their discretion.

The facts necessary to a consideration of this question, as we understand them, are as follows: The county commissioners of Eayette county, under the act of March 29, 1867, and the acts amendatory and supplementary thereto, had such proceedings and took such action that they made a final order establishing a county road,'beginning at the old corporation line in Market street, near the house of J. S. Beremanj in the village of Washington, and hence, by course and distance noted, a distance of seven miles and seventy-eight rods to the Bloomingburgh pike. Erom the beginning point in Market street, for one hundred and twenty-seven poles, the road was laid out five poles (82f feet) wide; thence, two hundred and two poles, it was laid out four poles (66 feet) wide, and the residue fifty feet wide.

By an act passed April 7, 1865 (S. & S. 690), and still in force, it is provided:

“All county roads that shall -hereafter be laid out and established shall be not less than thirty nor more than sixty feet wide.”

And an act passed March 27,1867 (S. & S. 693), provides as follows:

“ Section 1. That the county commissioners of the several counties shall have power to increase or reduce the width of any of the county roads within their respective counties; and the township trustees of the several townships shall have power to increase or reduce the width of any of the township roads within their respective townships : provided, that no county or township road shall be widened beyond the maximum limit, or narrowed to less than the minimum limit fixed by law for such county or township roads.”

It seems clear, as language can make a subject-matter, that the maximum width of a county road is limited to sixty feet, and the minimum width fixed at thirty feet. And where public policy or necessity makes it proper to increase or diminish the width of an existing county road, it can not be widened beyond the maximum limit, nor narrowed to less than the minimum limit. This is the general policy of the law where private property is taken for this public use, and we find nothing in the act of May 9,1868 (¡3. & S. 675, 676), conferring on the county commissioners a discretionary power in excess of this limited power.

“We think error intervened in the proceedings of the board of county commissioners in ordering this road to be laid out and established more than sixty feet wide on that portion of the line of the road, where it was necessary to condemn private property for the toad-bed. The error* however, in the respect we find it prejudicial to the rights of the plaintiffs, does not require a reversal of the whole case. Public policy and the law unite, in cases of this kind, in requiring an affirmance of the proceedings of the commissioners as to all persons not complaining, if the'error injuriously affecting the plaintiffs can be eliminated without destroying the whole. In this case, we think this can be done.

The provisions of the act of May 13, 1868, which is strictly remedial, and supplementary to the acts of March 29, 1867, and March 31, 1868 (S. & S. 677), are applicable to this case. It. provides: “That no person shall be permitted to take advantage of any error committed in any proceeding to lay out, construct, or improve any road under and by virtue of the act to which this is supplementary, or of the act entitled, ‘ an act to authorize the county commissioners to construct roads on petition of a majority of resident land-owners along and adjacent to the line of said roads,’ passed April 5, 1866, nor of any error committed by the county commissioners, ... or other person or persons, in the proceeding to lay out, construct, or improve any such road, nor of any informality, error, or defect appearing on the record of such proceeding, unless the party complaining is affected thereby. But the court in which any action is now pending, or may hereafter be brought, to enjoin, reverse, or declare void the proceedings by which any such road has been laid out, constructed, or improved, or ordered to be laid out, constructed, or improved, . . . may, if there be manifest error in such proceedings, affecting the rights of the plaintiff in such action, set the same aside as to him without affecting the rights or liabilities of the other parties in interest, and the court shall, on the final hearing, make such order in riie premises as may be equitable and just.”

It is claimed the record does not present a ease for the application of th'eprovisions of this act. Looking at the mischiefs which the statute was manifestly intended to obvíate, and to the remedies, both legal and equitable, it provides, we think the legislature intended its “ equitable and just” principles to apply to just such a case as is presented in this record, and that, too, whether the proceedings are instituted to reverse, enjoin, or declare void. Under the provisions of this act, in connection with the provisions of section 514 of the code, the reviewing court can make such order in the premises in regard to the proceedings of the commissioners, which are of a judicial character, as will protect all the rights of the individual, and, at the same time, be careful to regard and protect all the legal and just interests of the public. To this end, the reviewing court may reverse, vacate, or modify any final order made by the board of commissioners. The power of molding and modifying the action and orders of the commissioners is submitted by the statute to the sound judicial discretion of the reviewing court.

One hundred and twenty-seven poles of this road, from 'the beginning point, was laid out and established five rods •wide. As we read the record, this portion of the road is 'in the village of Washington, and x-uns through a tract of "land, within the corporate limits of the village, owned by .J. S. Bei-eman, and known as “ Bex-eman’s pasture.” As .•the x’oad divides “Bereman’s pasture,” and would have to ‘be fenced, he demanded two hundred dollars damages, to 'build, as xve understand it, the necessary additional fences. 'The viewer’s reported that sum in his favor, and it was .allowed to him by the commissionei’s.

Bereman proposed to the commissioners if they would day out the road five poles wide, and allow him two hundred ’■dollars damages, the estimated cost of feixcing, he would donate, for the purposes of the x’oad, one hundred and twenty-seven poles in length by five poles wide through his land. This proposition was accepted by the commissioners.

The viewers iix their report say: “We further report ■that we laid out said road five poles wide from the beginming point for one hundred and twenty-seven poles (127 [poles); three poles out of said five poles in width to lie on the north side of the continuation of the center of Market street, and two (2) poles on the south side of the continuation of the center of said Market street.” This action of the viewers was approved by- the commissioners. This 127 poles of roadway was donated to the public, alike for the use of plaintiffs as others.

The act of March 31, 1868, authorizes the commissioners to receive donations in money or property, real or personal, to be used in the construction or improvement of such roads. The commissioners are not directed as to the manner donations of this kind are to be used, and hence they must make the application as in their judgment seems best for the public. When more than sixty feet in width of land is donated to the public for a road, the commissioners may, we think, accept it in behalf of the public. Although a county road laid out more than sixty feet wide is not, in that respect, in strict conformity to law, if the cost and expense of the road are not increased thereby, we can not perceive what substantial right of the plaintiffs is prejudiced.

In the case under course of decision only thirty feet in width was used as a base of the improvement made on this roadway. It does not appear that this road has or will cost a dollar more to improve it or keep it in repair than if it had only been laid out just sixty feet wide.

As plaintiffs are not damaged by reason of Bereman’s donation, and we find there is error in the proceedings of the commissioners, we are to ascertain in what manner and to what exteut they have been prejudiced. We find it in this : Certain of the lands of plaintiffs were reported by the viewers to be assessed to pay the costs and expenses of constructing and improving the road. As a part of their final order in the premises, the commissioners made this order : “ And it is hereby further ordered by the board that the lands and lots, and parts of lots, reported by said viewers and surveyor shall be assessed for the construction of said road.”

Unless this final order is modified, the lands of plaintiffs will be required to bear a slightly larger proportion of the costs and expenses of the road and its improvements than tlieir just proportion. The costs and damages imposed by the erroneous appropriation of a strip of land six feet in width and. 202 rods in length is the measure of the error committed by the commissioners. To the extent this erroneous action of the board has or will increase the assessment upon the lands of the plaintiff's, and thereby cause them to pay more than a lawful share of the costs and expenses of the road, will be the measure of plaintiffs’ injury. The proceedings and final order of the county commissioners must be so modified that they will be required to pay no part of the value of or damages allowed to the property-holders for this fraction of land erroneously appropriated for the road.

We are not able at this time to determine the exact amount of pecuniary injury plaintiff will sustain should the proceedings and final order of the commissioners remain unchanged, but it approaches so' near the margin of the maxim de minimis non curat lex, that justice requires us to order that the costs of these proceedings in error be paid as follows: One-half by the plaintiffs and one-half by the defendants.

The case is remanded to the court of common pleas for further proceedings, and with' an order for that court to modify its judgment of affirmance so as to exempt plaintiffs from liability to pay any portion of the damages (and costs, if any) arising from the erroneous appropriation to the width of the road, by the order of the county commisers, of six feet by two hundred and two rods of land.  