
    Richmond.
    Lewis v. Washington.
    1. No limitation to the power of the County Court to establish a road is to be found in the degree of accommodation which it may afford to the public at large. That is a matter which addresses itself not to the authority, but the discretion of the Court.
    3. The true limit to the authority of the Court to establish a road, is in the purposes for which the road is to be employed. A terminus of the proposed road must be at the courthouse, or a public warehouse, landing, ferry, mill, coal mine, lead or iron works, or the seat of government, or in an already established road leading to one or more of these places; but the other terminus may be at any place, whether public or private, of any description, and the road may accommodate many or one.
    3. The County Court having established a proposed road, may authorize a particular individual to open it.
    On the 3d of September 1846, the County Court of King George, on the motion of Henry T. Washington, appointed viewers to view the ground along which a road was proposed to be opened, from a point on the road leading out from his house to the public road which leads to King George courthouse, passing for a part of the way on the line between said Washington and 
      Daingerfield Lewis, and then through the lands of r J-jGWIS.
    
    The viewers reported that a road was indispensably necessary to the ingress and egress of Washington from residence to the public road; and that there was no route whatever on which one could be located, which would contribute so much to the convenience of Washington, or so little to the inconvenience of Lewis; and that its location would involve no inconvenience to the public, and very little if any to Lewis.
    
    Upon the return of this report to the Court, a summons was issued to Lewis, who appeared and asked for a writ of ad quod damnum; and the jury assessed the damages which Lewis would sustain by the opening of the road, at 25 dollars.
    On the return of the inquest, Lewis opposed the opening of the road; but the Court made an order “ that leave be given the said Henry T. Washington to open the said road as proposed ; and that the costs of the inquest, together with the costs of the said H. T. Washington, be paid out of the next levy.”
    
      Lewis took an appeal from the order of the County Court to the Circuit Court of the county; where the order of the County Court was affirmed. And the Court certified, that the testimony clearly shewed that the road applied for by Washington was a road terminating at one of its extremities, at the gate at his own plantation, from which gate a mere private way existed to his own house, or other parts of his plantation; and at that extremity had no connexion with any public place; and that from the gate aforesaid, the road applied for led through the lands of Lewis for some two hundred and seventy-five or three hundred yards, to one of the main public roads of King George county, leading from Fredericksburg lo Hove's ferry, the courthouse, and several other public places of the Commonwealth, at the other extremity; and that the road applied for was convenient and necessary to Washington for ingress and egress from his own plantation, and for his access to the public places of the county and the Commonwealth. And it was also certified that the County Court of King George had, in the mode prescribed by the statute, rejected the first and second sections of the act of 1835, on the subject of roads.
    From the judgment of the Circuit Court, affirming the order of the County Court, Lewis applied to this Court for a supersedeas, which was awarded.
    
      Morson, for the appellant.
    An individual has no right to the establishment of a public road for his own convenience. No such right exists at common law; but in such a case as this, the common law gives a right of way, as a- private way, over the adjoining lands, as of necessity. Dutton v. Taylor, Mod. Cas. 3 ; Woolrych on Ways, cited 1 Lom. Dig. 527; 3 Kent’s Com. 423, 4; Buckby v. Coles, 5 Taunt. R. 311; 1 Eng. C. L. R. 115.
    The Virginia statutes on this subject are cited and examined by Judge Lomax, 1 Lom. Dig. 529; and it is clear, that until the act of 1785, the County Court had no authority to establish such a road. That act was re-enacted in 1819; but it was altered in 1835. Sess. Acts 1834-5, p. 56. The act of 1835 provides that if the Court shall be of opinion that the road will be of general use and advantage, it may proceed to open it. In this case the road will be convenient only to the appellee.
    The report of the viewers is not according to the directions of the statute; as it says nothing about any conveniences to the public that would result from the opening of the road. And the order of the Court is erroneous, in giving leave to Washington to open the road, instead of ordering that the road “be opened and established ;” leaving it to the surveyor who might be appointed, to open it.
    
      Patton, for the appellee.
    If there is any substantial irregularity in the order of the County Court, the appeal ought to be dismissed; as the order, if improper in giving to Washington leave to °Pen ^ roa(I> is nugatory.
    If the appellee is entitled to a road of necessity, then the order is beneficial to the appellant, as he is paid for the road, and the judgment of the Court below ought not to be reversed. But there may be some doubt whether the right of way of necessity exists, as that right exists only where there is no other way of ingress or egress to the claimant’s land; and it does not appear that the appellee is shut in on all sides.
    It was the intention of the law to give to the County Courts power to open roads wherever it was necessary, to enable the citizen to discharge his public duties. There is some difference in the language of the various acts, but they are substantially the same. In all of them the County Court is to decide, under all the circumstances, whether the road shall be established. The question is, whether the public is concerned directly or indirectly. And if the object is to get to public places, the public is interested. The language of the act of 1834-5, does not require more than one person to be interested to apply for the road; and if the Court is of opinion that it will be of general convenience, it is to be established.
    The objection of form, if there was any thing in it, has been waived by the appellant, by his appearing and applying for the writ of ad quod damnum.
    
   Baldwin, J.

delivered the opinion of the Court.

The authority of the County Courts to establish public roads, is a branch of their police jurisdiction, conferred for the benefit of all the citizens of the county, and to be exercised at the common expense, out of the revenue derived from the county levy. The use, convenience and advantage of the public, contemplated by the law, , . . . - , r , . are benefits arising out of the aggregate of such improvements, to which each particular road so established contributes in a greater or less degree. But no limitation upon the power of the Court, in regard to any proposed road, is to be found in the degree of accommodation which it may extend to the public at large. That is a matter which addresses itself not to the authority, but the discretion of the Court. It cannot be predicated of any particular road that it will be of direct utility to all the citizens of the county. It may accommodate in travel and transportation but a small neighbourhood, or only a few individuals. Still, when established, it may be used at pleasure by all the citizens of the county or country; and the public is interested in the accommodation of all the members of the community.

The true limit to the authority of the Court is in the purposes for which the road is to be employed. Any person or persons may apply to the Court to have a new road opened, or a former one altered, within the county, for the purpose of travelling to the county courthouse, or to any public warehouse, landing, ferry, mill, coal mines, lead or iron works, or to the seat of government. A terminus of the proposed road must therefore be at some place of the description above mentioned, or in an already established road leading thereto; but the other terminus may be at any place, whether public or private, of any description. And if the road be established, it may thereafter, by the authority of the Court, be extended from time to time, either continuously or from lateral points, so as to embrace in the accommodation an additional number of persons, or even a single individual.

No individual, it is true, has the privilege to demand as a matter of peremptory right, the establishment of a road, however important it may be to him as a matter of convenience, or even of necessity: but this is equally true of any number of individuals. Subject to the restriction above designated (and others not pertinent to this enquiry), the whole subject of opening, extending and altering roads lies within the sound discretion of the Court, whose duty it is to look to all the circumstances, whether of a general or limited nature, belonging to any particular case. It is proper for the Court to consider the necessities of the applicant or applicants in regard to such an accommodation, the extent to which it may be productive of convenience or inconvenience to other individuals, the direct or indirect advantages or disadvantages that may ensue to the public at large, the resources of the county properly applicable to such improvements, and the amount of the requisite expenditure. And if, under all the circumstances, it be just and reasonable that the road be established, it is not a proper ground for reversing the order to that effect, that only a single citizen and his family will be thereby accommodated. It redounds, in some degree, to the interest of the public that all the citizens who compose it should be so accommodated; and there is no principle upon which the wants and necessities of one individual must be imperatively rejected, which would not be applicable to two or three, or a dozen, or any given number short of the whole or the greater part of the community.

In the present case, there is nothing to indicate that the County Court, in establishing the road in question, transcended its authority, or exercised its discretion improperly. It appears that the road is requisite to enable the applicant to travel to the courthouse of his county, and other public places contemplated by the law; that it will occasion no inconvenience to the appellant, for which he will not be compensated by the damages assessed in his favour; that none will be sustained by other individuals, or the rest of the community; and that the expense to be incurred by the county is of but trivial amount.

We deem it unnecessary and improper to enquire, whether the applicant was entitled to a private way of necessity through the land of the appellant, and if he was, what effect such right ought to have upon the merits of the case. No such right appears to have been conceded, nor any accommodation of that nature proffered, by the appellant to the appellee; and it would seem that no such ground of defence was assumed in the Courts below.

As to the supposed imperfections in the report of the viewers, they need not be noticed, except for the purpose of saying that the objection ought to have been made in the County Court, by a motion to set aside the report.

There is no error to the prejudice of the appellant in the authority given to the appellee to open the road as established. If properly opened, it is immaterial to the appellant whether it be done by the appellee or the surveyor ; and if improperly done, whether by the one or the other, he will be entitled to the same redress.

It seems, therefore, to the Court, that there is no error in the judgment of the Circuit Court affirming that of the County Court.

Brooke, J. concurred in affirming the judgment.

Affirmed with costs.  