
    THE STATE, J. V. D. KELLEY, RELATOR, v. GARRETSON AND OTHERS.
    1. The assessment of the damages sustained by the land 'owners is a necessary part of the duty and return of the surveyors of the highways in laying out a road ; and if it is omitted, or if the assessment is illegal and void, the return of the road itself is illegal, and must be set aside : it is all one proceeding, which cannot be good in part and bad in part. ,
    2. Where a road is laid out in two townships, if surveyors omit to adjudge what part of the damages awarded is to be paid by each township, the laying out the road is illegal, and must be set aside.
    3. Every owner of land taken, not an applicant, must have some damages awarded him. Per Ogden, J., Nevius, J., dubitat.
    
    On certiorari to Somerset Common Pleas, in matter of highway.
    Argued before Nevius and Ogden, Justices.
    
      G. H. Brown, for plaintiff; Ransom, for defendant.
   Nevius, J.

This certiorari is brought to reverse an order of the Court of Common Pleas, setting aside the return of a road laid out by the surveyors. The grounds urged in support of the order of the court below are—

1st. That one of the surveyors was a brother of a land owner to whom damages were assessed for lands taken.

2d. That the surveyors made no assessment to certain other land owners, whose lands were taken for the road. And—

3d. That the road being laid out in .two townships, the surveyors omitted to determine what proportion of the damages awarded to a land owner, whose lands lay partly in each township, should be paid by these respective townships.

In answer to these, it is insisted by the counsel for the plaintiff in certiorari, that whatever irregularity or error there may be in the proceedings of the surveyors touching the assessment of damages to land owners, it will not vitiate their proceedings touching their return of the road itself; that the laying out the road and the assessment of damages to the land owners are distinct and independent acts, and that the former may be maintained, whilst the latter may be set aside. 1 confess I was at first forcibly impressed with the argument of counsel in support of this position, but, on a careful examination of the statutes concerning public, highways, I have been brought to the conviction that the assessment of damages to land owners by the surveyors, is a part of one entire duty imposed by law upon them, who are constituted a tribunal in the first instance to determine whether a road applied for is necessary, and then to lay 'it out, make return with a map annexed, and, by the act of 1850, assess the damages to the land owners. If this tribunal fail to declare in their return that such road is neces sary, or omit, to state that they have been duly convened on such notice as the law requires, or fail to annex a map of the road to their return, or to make the assessment, as required by the act of 1850, their return is defective, and must be set aside. The duty of assessment is as imperative upon them as any oilier duty, and as much so as if incorporated in the original act, for the supplement and original act must be construed together. It is true that an appeal is allowed to a town committee, or to the owner of lands taken for the road against the determination of the surveyors. But if they make no assessment at all, they have failed in this part of their official duty, and their whole return is vitiated. So if they fail to state and certify the proportion of the assessment which the different townships are to pay, where the road runs in two or more townships, the return is bad ; and as there can be no appeal or review in such case, the return must be set aside. Without expressing an opinion upon the first and second grounds taken before the Common Pleas, I think they were warranted in making the order they did on the third ground, and that judgment should be rendered against the plaintiff in certiorari, with costs.

Ogdex, J.

I concur that the judgment should be in favor of the defendants in certiorari, upon the third ground; and I am also of opinion, that the surveyors are bound to adjudicate and express in their return of damages, their determination upon the damages sustained by each land holder, and that a failure so to do vitiates a return.

Cited in State v. Runyon, 4 Zab. 256; State v. Pierson, 8 Vr. 368.  