
    VIERS, HENING & M‘DOWELL’S PETITION.
    Damages for an highway passing over any person’s land, must be claimed before such highway is opened, and at the session to which the return is made.
    Petition, setting forth that a road has been ordered to be opened from, &c. which runs through lands belonging to the petitioners, to their damage, and praying that five disinterested landholders of the county, may be appointed to- view and assess the damages.
    Wright, for the petitioners,
    stated that this road had been established on appeal by this court, and that after it was so established, the petitioners applied to the county commissioners on the 8th of August 1814, for the appointment of viewers to assess their damages : that on the 6th Sept. 18L4, the commissioners refused to grant the prayer of the petition : that, thereupon, the petitioners applied to the supreme court for a mandamus to the commissioners, to compel them to order a view: and that, at the last term of the supreme court, a mandamus was refused, on the ground that, as the road was established by the court of common pleas, application ought to have been made to the court, and not to the' commissioners: and that, in consequence of this decision of the supreme court, this application is now made.
   President.

I fully agree in opinion with the supreme court, that this application can only be made to the court of common pleas. The “act for opening and regulating roads and highways,” giving an appeal to the court of common pleas, and this court, on such appeal, being required to “ proceed therein in like manner as the commissioners are enabled by this act to do,” we must see what the commissioners are enabled by the act to do upon such a petition, in order to determine what is our duty upon this application.

The 7th section of the act provides “ that if any person, through whose land any proposed county road may run, feels himself or herself aggrieved thereby, such person or persons may, at any time before such road, is opened, set forth his or her grievances, in writing, to the commissioners, at their session to which the return of such road is made,” &c. On such application, the commissioners are authorized to appoint viewers to assess the damages, such, application must be made before such road is opened,” and at the session to which the return of such road is made.” The return of this road was made two years ago, and the road was soon after opened. The petitioners are, therefore, too late. We have not the power to grant the prayer of their petition.

Both the constitution and the principles of justice require, that the public shall compensate for all private property taken and appropriated to public use; and this act fully recognizes this principle; but policy requires that some limitation, as to the time of application for compensation, should be fixed, so that a voluntary grant or donation should not be revocable. It is left to the discretion of the commissioners or court, whether they will establish a road or not; and the convenience as well as the expence of it, are to be taken into consideration. By this wise provision of the law, it is intended that tbe commissioners or court shall be enabled to judge of the expediency of establishing a road, by knowing what expence it will be to the county.

There are but few instances in which the laying out of a public highway over the land of an individual, is an injury to his property; and I can see no injustice in presuming a grant of the easement to the public, from the circumstance of his acquiescing in the laying out and establishing the road, and forbearing to interpose his claim until the road is ordered to be opened. From such acquiescence, the tribunal establishing the road, may conclude that the land is given to the public. They may be fortified in such conclusion, if the owners of the land over which the road is to pass, are petitioners for the road. These circumstances are understood to combine in this case; and, if so, they give to this application a character not very honorable to the applicants.

Petition dismissed.  