
    Wright and Another v. Wells and Others.
    Highways.—Aspeáis.—The hoard of commissioners is not a necessary party to an appeal from an order of the hoard establishing a highway.
    APPEAL from the Elkhart Common Pleas.
   Eeazer, J.

The appellants contested, before the board of commissioners, a petition by the appellees to establish a highway. They, at the proper time, remonstrated, upon the ground that the proposed highway would not be of public utility, and also claimed damages for the use of their lands for the purposes of the way'. Such proceedings were had before the board that damages were assessed in their favor, and the road granted. In the vacation of the board, the present appellants appealed to the Court of Common Pleas, from the order establishing the highway. In the Common Pleas, the appellees appeared, and moved to dismiss the appeal; and the appellants immediately moved for leave to make the board a party to the appeal. The latter motion was overruled and the former sustained, and the appeal accordingly dismissed.

Inasmuch as no argument is made here for the appellees, we are left to conjecture as to the ground upon which the court below acted. We infer, however, that it was because the board of commissioners had not been made a party to the appeal. If so, we are unable to sustain its action. The-appeal might have been either from the order fixing the-damages, or from the order establishing the road, or from both. If from the former, then possibly the board was a necessary party, inasmuch as the- damages obtained might be ordered to be paid out of the county treasury. But if the appeal was only from the order establishing the road, then the board was not a necessary party. The appeal was from the latter order only; it was so recited in the appeal bond, and that recital bound the appellants, and, indeed, was the only evidence in the record showing the nature of the appeal.

W. A. Woods, for appellants.

The judgment is reversed, with costs, and the cause remanded, with directions to set aside the order dismissing the appeal, and to proceed with the cause.  