
    The State vs. The Judges of Salem Pleas.
    1. Where a road has been laid out and recorded, though never opened, the Court of Common Pleas may on application, appoint surveyors to vacate the same.
    2. And if the Court of Common Pleas refuse to make an appointment of surveyors on proper application, for the purpose of vacating such road, a mandamus will be ordered.
    3. It is not a sufficient reason for refusing to appoint surveyors in such case, that a rule for an alternative mandamus for the opening of the road was at the time pending in the Supreme Court.
    A certain road, commonly called the Hook road, was laid out in the townships of Upper and Lower Penn’s Heck, in the county of Salem, on the 24th day of July, A. D. 1822, and recorded in the month of December following. Application in writing was made to the Inferior Court of Common Pleas of the said county, at the term of June, A. D. 1824, by more than ten persons, who were freeholders and residents in the said county, for the appointment of surveyors of the highways to view the said road, for the purpose of vacating the same, should they see fit so to do; of which application notice was duly given and proved.
    In opposition it was made to appear, that the road, although laid out, had never been opened, notwithstanding that the time appointed for opening the same had passed; and further, that an alternative mandamus had been issued out of the Supreme Court *at the May term next [*247 previous, directing the township committee of the township of Lower Penn’s Neck, to district and assign the said road to an overseer or overseers, for opening, amendment and repair, or to shew cause, &c. The application for the appointment of surveyors was refused.
    It was agreed by the parties that if this court, upon this statement of the case, should be of opinion that the Court of Common Pleas had a right to refuse the appointment of surveyors, then all proceedings against them to compel such appointment at present subsisting in this court, should be discharged; but if it be the opinion of this court that the Common Pleas had not such right, then a peremptory mandamus, directed to the judges of the said Inferior Court of Common Pleas, commanding the appointment of surveyors, should immediately issue.
    
      Dayton
    
    moved for a mandamus upon the foregoing case, and contended—
    1. That is was the duty of the court to appoint the surveyors, the proper application having been made, and all the prerequisites having been complied with.
    2. That there was no mode of compelling the court to do this duty, except by mandamus; and unless this court by its general -superintending power over all courts of inferior jurisdiction could enforce the performance of such duty, the whole discretion would be left with the Court of Common Pleas, without control and without appeal, and they would be left to judge exclusively of the expediency of a road.
    3. That if there was any other specific remedy except a mandamus, it would be incumbent on the adverse counsel to point it out.
    
      Jeffers, contra, did not deny the power of this court to issue a mandanfus in this case, but objected, as he had done before the Court of Common Pleas, to the appointment of the surveyors ; that there was no road to be vacated ; the road never having been opened. The statute, Rev. Laws 615, sec. 2, contemplated a road, and there was in reality no road until it was opened. The mere laying out the road and recording it, and the passing of the time when it should be opened, did not make a road.
    2. The same road having been laid out and recorded, a combination had existed between the officers of Lower Penn’s Neck ever since the year 1822 to defeat the road.
   *248] Ewing, C. J.

We are all of opinion that the Court of Common Pleas ought to have made the appointment. The return was made and recorded ; the time appointed for opening the road had passed; and after the lapse of a year an application was made to vacate it. The first objection is, that it was not a road. But the statute makes it a road “from the time appointed for the opening of the same.” Rev. Laws 617, sec. 4. When a road has been laid out, and the time for ■ opening it has elapsed, it may be vacated. It is not necessary that it should be opened. The other objections are, that this court had ordered an alternative mandamus for the opening of the road, which was pending at the time of the application to the Court of Common Pleas for the appointment of surveyors, and that there had been a combination to produce delay. But although there have been delays, they have been sanctioned by law; and the existence of the application for a mandamus was no reason why the Court of Common Pleas should not have made the appointment. The law required the court to make the appointment, and they were not bound to suspend the making it because there was an application to this court for a mandamus.

Let a mandamus issue.  