
    Samuel McClelland v. John Miller.
    1. Under the statute (March 14, 1831, Swan, 796, ea. 1849) for opening roads and highways, a road record is not incompetent evidence in a collateral proceeding, because all the steps prescribed do not appear in the record itself.
    2. Although by sections 2 and 16 a bond is required to be given, the record is not incompetent evidence in a collateral proceeding, because it does not show such bond given. The statute prescribing what shall constitute the record of the road does not require that all preliminary steps should appear therein, and when the report, survey, and plat have been recorded as directed by statute, it will be presumed that all was done which the law required should be done, where the road has long been opened and used with the acquiescence of landholders adjoining.
    
      3. In case of such record, use, and acquiescence, the proceedings are not invalidated, because it does not appear from the record itself that the viewers were freeholders of the county. Nor is it invalidated because one of the viewers acted as surveyor, nor because the record does not contain any order to the viewers and surveyors, nor because it fails to show that they were sworn. N or is it invalidated because the commissioners ordered the report recorded at the same session it was made, nor because the record fails to show an order directing the road to be opened. If these things were omitted to be done, though they might be taken advantage of in a direct proceeding to reverse the action of the commissioners, yet in a collateral proceeding such omissions can not render the record null and void.
    4. An encroachment upon a highway regularly laid out and established, by putting out a fence or planting a hedge within the legal limits of the road, does not constitute such adverse possession as will confer title.
    6. The seven years limitation prescribed in section 29 of the road act of 1853 (S. & O. 1296) applies to roads authorized but never opened, and not to roads which have been opened and partially obstructed by a landholder fencing in a portion of the same.
    Error to the District Court of Lorain county.
    Samuel McClelland filed his petition in the court of common pleas, Lorain county, averring that he was owner of a certain tract of land; that John Miller claimed to be supervisor of roads for that district, and that be was about to enter upon plaintiff’s premises, remove the fences, tear up a hedge, and do other irreparable damage, and an injunction is prayed for to restrain Miller from performing these acts.
    In answer, Miller says he is supervisor of roads; that along plaintiff’s premises is a highway, laid out and established sixty feet wide; that the plaintiff has been encroaching on this highway, and has put out his fence seven and a half feet, leaving only twenty-two and a half feet to the center of the road, instead of thirty feet, as there should be, and defendant says he is about to remove this fence, in discharge of his duty as supervisor, so as to make the road of its proper and legal width, which is the injury complained of.
    The reply says there is a higlrway there, but denies that it was ever legally laid out and established sixty feet wide, or any other number of feet; that the only right the public have is that acquired by prescription ; that the hedge, which the supervisor is about to remove, is within his fence, and he has occupied, openly and notoriously, for more than twenty-five years.
    Upon trial had, the petition was dismissed and the case appealed to the district court. Upon trial there, a bill of exceptions was taken, which showed that plaintiff' offered evidence tending to show that he was the owner of, and in possession of, the premises, and rested.
    Defendant then offered in evidence a record contained in the book denominated the “ Record of Roads and Highways of Lorain County, Ohio,” and which was admitted to be the record of roads of said county, of which the following is a true copy :
    “At a stated meeting of the commissioners of Lorain county, begun and holden in and for said county on the first Monday in December, in the year of our Lord 1831, pursuant to law — present Milton Garfield, Judson Wads-worth, and Samuel Crocker, Esqs., commissioners — Albin Stickney, one of the first twelve signers of the petition next hereinafter referred to, came and presented the said petition to the commissioners, which is in the words and figures following, viz:
    
      To the Commissioners of the County of Lorain:
    
    “‘ We, the undersigned inhabitants and freeholders of the township of-Avon, humbly pray that a committee and surveyor may be appointed to view and lay out a public road commencing at the northeast corner of section number six, on the lake shore, in Avon, thence running south on the line of section, as near as practicable, till it shall intersect the Creek road, near A. Barrows’.
    “ ‘ Signed at Avon, November 26, 1831, by Albin Stickney, Waterman Sweet, Elah Park, Wm. Long, Asher Chapman, Thomas Williams, C. Bronson, Ora B. Cahoon, John Williams, Alexis Miller, Adam Miller, Moses Case, Ransom Moon, Daniel Squires, Stephen Lent, Joseph Moon, Norman Moore, S. B. Jacox, Tyler Williams, Justin Williams, Larkins Williams, C. N. Williams, E. W. Payne, and Levi Wetmore.’
    “And the commissioners, being satisfied that legal notice of the application has been given, caused the said petition to be audibly read in open meeting, agreeably to law, and did thereupon appoint J. B. Jameson, Jesse S. Cahoon, and Wm. Day a committee to view the ground along which the said road is proposed to be conducted, as near the prayer of the said petitioners as a good road can be obtained at a reasonable expense, and truly and impartially to take into consideration the utility, convenience, inconvenience, and expense which will result as well to individuals as to the public if said road shall be so laid out and established; and if a majority of the said viewers shall be of opinion that said road, if laid out and established, will not be of public utility, they shall report accordingly; and the commissioners did further appoint Wm. Day, a skillful surveyor, to survey the said road, under the directions of the committee aforesaid.
    “ At a stated meeting of the commissioners of Lorain county, begun and holden at Elyria, in and for said county, on the first Monday in March, in the year of our Lord 1832, pursuant to law — present Milton Garfield, Judson Wadsworth, and Samuel Crocker, commissioners — came the said committee and made the following report:
    “4 To the Honorable County Commissioners of Lorain County:
    
    “4 Gentlemen : We, being appointed a committee to examine a route for a road leading from the corner of section No. 6, on the lake shore, in Avon, to the Creek road, near A. Barrows’, did, agreeably to your order, after being duly sworn, proceed on the 2d day of March, 1832, to view said route, and are in favor of establishing the same as a publie highway. “4 Joseph B. Jameson,
    44 4 Jesse S. Cahoon,
    4“Wm. Day,
    “4 Committee.’
    
    44 4 Survey of the before mentioned road, commencing at the corner of section No. 6, on the lake shore, in Avon, and running from thence S. Io E. 160 chains, marked a sugar maple for first mile tree, and a small basswood for the second; thence S. 9° W. 15 chains; thence S. Io E. 65 chains, marked a small elm for the third mile tree, on the same course, 7 chains and 50 links, to Creek road.
    ‘“¥m. Hay, Surveyor.’ ”
    [Accompanying the surveyor’s report is a profile- of the road, being two parallel lines from north to south, with a bend near the south end.]
    “ The foregoing return and survey were read on two days of this said meeting, in March, 1832, and there being no objections made to the same, the commissioners ordered it to be recorded as above.
    “ Attest: Henry O. Minott,
    “ Auditor, and Commissioners’ Clerk.”
    
    To the introduction of which record the plaintiff then and there objected, which objection the court overruled and allowed said record to be read in evidence, and tc which ruling of the court the plaintiff the.n and there ex cepted.
    And to further maintain the issues upon his part, the defendant introduced and called sundry witnesses, tending to prove that said road had been opened and occupied along the line of said survey for the whole period since said survey was made, and rested his case. And the plaintiff, further to maintain the issues upon his part, called sundry witnesses, tending to prove that, although said road had been used and traveled as a public highway for more than twenty-one years, yet it had never been open or used as such highway beyond a line where said hedge now stands ; that when said hedge was set out, it was set out on the field side of the road which marked the boundary of said road on the side of said plaintiff’s land, and wholly inside of said fence, and rested his case. Much other testimony was offered pro and con as to the locality of this hedge, and whether it was in the road or in the field from where the original fence marking the boundary of said road first stood.
    
      Whereupon said court, after the cause had been argued by counsel, found:
    1. That said road was duly laid out and established as a legal county road, and of the width of sixty feet, in pursuance of the statutes then in force.
    2. That the statute in force at the time said road was laid out and established made all county roads duly laid out and established, and this among the rest, sixty feet wide.
    3. That said hedge, being only twenty-three feet from the line of said highway, was within the bounds of said road, and that the defendant, as supervisor of the road district in which it was situate, had a right and it was his duty to remove it.
    4. That said temporary injunction must be dissolved, and plaintiff’s bill be dismissed with cost.
    To which finding of the court, order, and judgment the plaintiff then and there excepted, and prayed said court to sign this his bill of exceptions, and allow the same to become a part of the record in the ease; which is accordingly done in open court, this 28th day of August, A. D. 1872.
    Whereupon plaintiff filed a petition in error in the supreme court.
    
      L. J. Critchfield, for plaintiff in error:
    I. The case, as made by the plaintiff in his petition, was one in which he might properly ask the interference#of a court by injunction. McArthur v. Kelly, 5 Ohio, 140; Anderson v. Commissioners, 12 Ohio St. 642.
    II. The road record was improperly admitted in evidence. It was, on its face, invalid, and shows that the road was not established agreeably to the statute — the act of March 14,1831, which took effect October 1,1831. Swan’s Stat. of 1841, p. 796, et seq.
    The rule that the proceedings of tribunals of inferior and limited jurisdiction will be looked upon with leniency does not apply, first, in matters involving their right of jurisdiction ; nor, second, in regard to proceedings to take private property for public use. In both of these particulars the authority derived from statutes must be strictly pursued. Anderson v. Commissioners, 12 Ohio St. 644; Beebe v. Scheidt et al., 13 Ohio St. 415, 416.
    Before an action for obstructing a road can be maintained, it must be recorded, opened, and the statute followed. Roller v. Kirby, Hamilton Com. Pleas, 1 W. L. G. 550; 2 McVey Dig. 191, sec. 87.
    The same rule is applicable to alleged encroachment.
    The objections to this road record, apparent upon its face, are as follows:
    1. The petitioners do not appear to be residents of the vicinity where the road was to be laid out, as the statute requires. Swan, 796, 797, sec. 2. They are described in the petition as “inhabitants and freeholders of the town of Avon.”
    2. The record fails to show that any bond was given, as required by the statute. Swan’s Stat. 797, sec. 2; Ib. 802, sec. 16.
    The giving of the bond was a condition precedent to the exercise of jurisdiction to hear and determine the petition for the road. Sessions v. Krunkilton, 20 Ohio St. 349.
    And the record of the proceedings of the commissioners must show that the bond was given. Ferris v. Bramble, 5 Ohio St. 109.
    3. The statute (sec. 3) requires the viewers to be “ freeholders of the county.” The record fails to show either that the viewers appointed were “ freeholders,” or that they were “ of the county.” For aught that appears, the viewers may not have been “ freeholders ” and may not have been “ of the county.”
    4. ¥m. Day, one of the three viewers, was also the surveyor. The statute requires three viewers and a surveyor. The statute imposes duties on the viewers requiring the exercise of discretion and judgment. They are to direct the surveyor. The three viewers were appointed to direct the fourth, the surveyor. Wells County Road, 7 Ohio St. 16, 19; 12 Ohio St. 638; 13 Ohio St. 407-413.
    
      5. The statute requires the commissioners to issue an order to the viewers and surveyor. Sec. 8.
    The record does not contain any order to the viewers and surveyor.
    6. The statute requires the viewers and the surveyor to he sworn. The record does not show by any proper evidence that they were sworn. The statement in their report that they were sworn is not sufficient evidence of the fact.
    7. The viewers reported to the commissioners at their March session, a. d. 1832, and they ordered the report to be recorded at the same session. The statute (sec. 4, p. 798) did not authorize the report to be recorded until the next session after the report was made. The record of the report was premature and without authority. And this is material, because the record of the report at the proper time would have had the effect to make the road reported a public highway, if the statute had been complied with in other respects. A premature record was no i’ecord.
    8. The record fails to show that the commissioners ever issued their order directing the road to be opened — may be because of no bond, or that the road was not useful. Swan’s Stat. 798, sec. 4.
    The district court, then, erred in allowing the road record to be read in evidence, and also in holding that the road was legally laid out and established sixty feet wide. The road was not legally established any width and never became a statutory road.
    III. If the road had been laid out and established in conformity with the statute, and thus became a road sixty feet wide, and the plaintiff' and those under whom he claims encroached upon it to the extent claimed by the defendant, yet the encroachment, having continued for over twénty-one years, under a claim of right, and adversely, the easement of the public in the strip of land thus encroached upon and, held was destroyed, and the right of entry of the public is barred by limitation. Washburne on Easements, 640. The question was referred to, but not directly decided in Fox v. Hunt, 11 Ohio, 416. See Cincinnati v. Presbyterian Church, 8 Ohio, 298, approved and affirmed; City of Cincinnati v. Evans, 5 Ohio St. 594; S. & C. 1296, sec. 29.
    IY. The existence of a road alongside of the plaintiff’s land is not denied, but is admitted. It is a road which has become such by long use, and not by statute.
    The right of way of the public is acquired, not so much by prescription (which presumes a grant, and a capable grantee — the shifting public is not a capable grantee) as by custom or use, from which a deduction for public uses may be presumed in cases where the use has continued for a period of time equal to the limitation for quieting title to land — in Ohio twenty-one years. Such right is generally called a right by prescription, but, as stated, is more properly a right by custom or use. Washburne on Easements, 108, 109, 111-113, 122, 123, 173-178.
    But where a highway is claimed by prescription or use, the character ’ and extent of the way is determined and limited by the uses under which it is acquired “ The extent of a usage of a way is evidence only of a right commensurate with the use.’’ Ib. 109, sec. 9; Ib. 123, 124, sec. 25.
    All prescriptions are stricta juris. Ib. 110, sec. 10.
    
      John C. Hale, for defendant in error :
    As to the objection that the petitioners do not appear to be residents of the vicinity -when the roadway was laid out, it is sufficient answer that the road is in Avon township, and the petitioners lived in that town. See Beebe v. Scheidt, 13 Ohio St. 415.
    As to the objection that no bond was given: The filing of such bond was not essential to jurisdiction. Section 2 of the act of March 14, 1831 (Swan’s Stat. 796), relied on to sustain the objection taken, together with section 3 of the same act, does not bear such a construction. And there is nothing in the statute requiring a record of the bond.
    All other objections taken to the record fall within the letter of Beebee v. Scheidt, cited above, and by that case are settled in favor of the defendant.
    The plaintiff based his right to the relief asked on two grounds:
    1. That the fence in controversy was not within the limits of any legally established highway.
    2. That he and his grantors had been in adverse possession of the land up to the line of the hedge for more than twenty-one years before the commencement of this suit.
    The bill of exceptions shows that the plaintiff gave evidence tending to establish his latter claim, which was met by evidence on behalf of defendant.
    The record was competent upon that issue.
    Section 1 of the act cited above (Swan’s Stat. 796), fixes the width of all county roads at sixty feet.
    It is claimed, even if the road had been legally established sixty feet wide, that the plaintiff and those under whom he claims having continued in possession of the land to the fence for over twenty-one years, under a claim of' right, the right of entry of the public is barred by limitation. A complete answer to this claim is found:
    1. In the fact that the bill of exceptions does not set-out all the testimony given on that point.
    2. That that question can not be reviewed by this court,, as no motion for a new trial was made in the court below.
    To pass upon that question here would be to do the defendant great injustice, for the testimony necessary for its-rightful determination is not before the court.
    3. A partial encroachment on the side of a surveyed and: traveled highway is not necessarily adverse to the public,, and therefore constitutes no bar to its reclamation by the-supervisor, when required for public travel. Lane v. Kennedy et al., 13 Ohio St. 42.
    The same reasoning applies to the claim that this portion of the road was not open for more than seven years-after the road was established. Besides, it is not true, and. the evidence to establish its truth or falsity is not before the court.
    The plaintiff had a complete remedy at law, and for that reason the petition was properly dismissed. Bank v. Debolt, 1 Ohio St. 591; Ross v. Page, 6 Ib. 166; Jerome et al. v. Ross, 7 Johns. Ch. 315.
   Wright, J.

The first and principal error assigned is the admission of the record, purporting to be a record of the establishment of the road in question. It is urged that there are many mistakes and errors in this record, and doubtless the same remark, with propriety, may be made, of most of the early proceedings that relate to the establishment of the roads throughout the state. The disposition of courts, however, has always been to uphold these proceedings of inferior tribunals, so far as consistently may be done. As early as the case of Harding v. Trustees, etc., 3 Ohio, 231, ithis liberality was shown toward proceedings of justices, and the remarks in that case are quoted with approbation so late as 13 Ohio St. 416.

In the case of Arnold v. Flattery, 5 Ohio, 271, perhaps the earliest of reported cases on this subject, there were serious objections to the record offered. In that case the road was established under the law which required an application to •be made to the commissioners signed by twelve landholders, ..and thirty days’ notice to be given preliminary to any authority given to the commissioners to proceed. 13 Ohio St. 417. But the record showed neither petition nor notice, yet it was admitted in evidence. And the court say, “ Nor can it be required, after the lapse of many years, that to sustain a public road, every preliminary step directed to be taken in establishing it, must be proven by existing records.”

In Anderson v. The Comm’rs of Hamilton County, 12 Ohio St. 635, the same class of objections were made to the admission of the record, that are made in the case at bar, the law being that of 14th March, 1831, the same we are now considering. It was there claimed that the record must ¡show on its face, or be supported by proof, that there was a proper petition and notice duly given; but the court say that the record which the statute directs, must be regarded, in any collateral proceeding, as evidence of the establishment of the road. And further: “ If the report, survey, and plat be recorded, as directed by the statute, the presumption that it has been properly and regularly done will arise, and the record will, in the language of the statute, show that the road is to be considered a public highway.” And the court proceed to remark that if a road thus established be opened and used, a further presumption may arise that those who are, or should be cognizant of such use, acquiesce therein, and are so estopped to dispute the legality of the proceedings.

The application of this principle, it is said, will generally suffice to prevent the obstruction of public highways, which have been long in use, on the ground of a want of compliance with the requisites prescribed by the statute, as essential to their original establishment.

In Beebe v. Scheidt, 13 Ohio St. 415, with regard to the giving of notice prescribed by the statute, it is said: “ While, therefore, the notice required in section 5 should certainly have appeared in the record, to make the same perfect and conformable to the statute, it does not appear to be such an omission as renders the proceeding, while unreversed and in full force, of no effect, and to authorize the court to treat the record as a nullity in a collateral proceeding.”

It will therefore be seen that whatever might be the effect of objections taken, in the direct proceeding, establishing the road, these objections are altogether of different moment, when made in a collateral proceeding, in a case of a road established and used for a great length of time, and when they are made by one long cognizant of that use, who seeks to obstruct the highway, without other justification than that the original record is defective.

The first objection to the record is, that the petitioners do not appear to be “ residents of the vicinity,” as the statute requires. The petitioners describe themselves as inhabitants and freeholders of the township of Avon, and the road is in Avon. The vicinity was doubtless considered sufficient by the commissioners in 1831, and we see no reason to doubt that conclusion now.

The next objection stated by counsel is, that the record fails to show that any bond was given, as required by the statute. The language of the law is this (Swan, ed. 1841, p. 797, sec. 2) : An application for a road shall be by petition, “ and one or more of the signei’s to said petition shall enter into bond,” etc.

Also (Ib. 802, sec. 16): “ That in all applications made under the provisions of this act, the county commissioners shall, before granting any order thereon, require of the person or persons making such application, a bond,” etc.

It thus appears that the law provides for a bond being given, before the commissioners take action. But it does not provide that the road record must show that.fact. What is to constitute the record of the road appears to be this: When the viewers have reported, if the commissioners are satisfied that the road will be of public utility, “ they shall cause said report, survey, and plat to be recorded, and from thenceforth said road shall be considered a public highway, and the commissioners shall issue their order directing said road to be opened.” Swan, ed. 1841, p. 798, sec. 4. Hence, as Gholson says in 12 Ohio St. 642: “ If the report, plat, and survey be recorded, as the statute directs, the presumption that it has been properly and regularly done, will arise.” It by no means follows that because the record of the road does not show bond given, that for that reason no bond was in fact given. The commissioners keep other records than that relating to roads, an examination of which might, and probably would, show that all steps had been regularly taken.

So early as February 13, 1804, the act establishing the board of commissioners provided they should keep a just and accurate record of all their corporate proceedings, and they were to have a clerk to keep these records. Since 1821, the county auditor has been clerk of the commissioners, and required to keep a record of their proceedings, and by the acts of 1824 and 1831, this record is still required to be kept. 13 Ohio St. 411.

This record, showing the action of the commissioners from day to day, might be expected to show that the bond in question was given, and still they might very properly refrain from causing it to appear in a record which provided only and specifically that the report, plat, and survey be recorded.

In a collateral proceeding, therefore, like the one' before us, it can not invalidate the record, that it does not exhibit a fact which the law has not required it to exhibit.

In the case of Sessions v. Krunkilton, 20 Ohio St. 349, the statute required that before any steps were taken, a bond should be given, and the proceeding was invalidated because it appeared affirmatively that no bond had been given. It does not so appear here. The fact that the record offered in evidence, did not show bond given, does not prove that it was not given.

Various other objections are made.

3. That the record fails to show that the viewers were freeholders, as the statute requires.

4. That one of the three viewers was the surveyor, when the statute requires three viewers and a surveyor.

5. That the record does not contain an order to the viewers and surveyor.

6. The record does not show that the viewers and surveyor were sworn.

7. The viewers reported at the March session, 1832, of the commissioners, who ordered the report to be recorded at the same session, when the statute did not authorize the report to be recorded until the next session.

8. The record fails to show that the commissioners ever issued their order to open the road.

As to all these objections, we only desire to say, had they been taken in the proceéding itself which established the road, as was the case in Ferris v. Bramble, 5 Ohio St. 109, and in the matter of Wells County Road, 7 Ohio St. 16, cited by counsel, they might and probably would have been considered by the court. But what may suffice to reverse on error will not necessai’iJy invalidate the same record, when attacked in a collateral proceeding. If the court had jurisdiction, however erroneously it may have proceeded, there is no remedy when the case is finally closedl

None of the objections made go to such jurisdictional facts as will impeach this proceeding, and the record was properly admitted. '

It is further claimed by plaintiff in error that he has had possession of this strip of ground, which he has inclosed, for more than twenty-one years, and he therefore has title thereto. This position is answered by the case of Lane v. Kennedy, 13 Ohio St. 42. The doctrine of that case is that the mere inclosing of a part of a highway by a fence, does not necessarily constitute such adverse possession, as against the public, as will confer title by mere lapse of time. When roads are laid out and travel is limited, necessity may not require that the whole width should be opened when a less quantity answers every purpose. But the fact that a portion of the highway remains in the possession of adjoining owners, is merely matter of sufferance, from which rights can not accrue. If, as in 5 Ohio St. 594, such proprietor should erect permanent improvements upon the ground in question, indicating an intention permanently to appropriate the land, a question of adverse possession might arise. But such is not this case. A fence is not such permanent improvement. Nor does the fact that a hedge was planted, vary the case. The public have a mere easement for the road. The proprietor still owns the fee, and may use it in any way not inconsistent with the purposes of a road. He may plant trees ; he is entitled to the herbage ; and the setting out of a hedge entirely comports with his own rights, while it does not conflict with those of the public. There was not, therefore, such adverse possession as confers the title claimed. 2 Curw. 1154; Peck v. Clark, 19 Ohio, 367.

It is also claimed that the road has become vacated under the statute of 1853.

Section 29 of the road act of 1858 (S. & 0.1296) provides “ that any county road, or part thereof, which has heretofore, or may hereafter be authorized, which shall remain unopened for public use for the space of seven years after the order made or authority granted for opening the same,” etc., “ shall be and the same is hereby vacated, and the authority granted for erecting the same barred by lapse of time.”

The construction of this statute is, that it applies only to roads which have been authorized by the commissioners, but never in fact opened. The language is, any’ road “ authorized which shall remain unopened for public use.” Such language clearly applies to roads that never have been opened, otherwise they could not “ remain ” unopened.

Again, the seven years limitation runs from the date of the order granted'for the opening. Suppose a road duly opened; ten years after, it is closed, and remains so for seven years. How can that seven years date from the time of the order for opening, seventeen years before ?

This statute can not apply to such a case as this. Peck v. Clark, 19 Ohio, 367.

There is no error in the proceedings below, and the judgment is affirmed.  