
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Smith, Swing and Cox, JJ.
    LUDLOW v. DIES.
    
      Width of public road established before statute requiring a width, of 60 feet —
    A public road, established at a width of forty feet at a tim® previous to the passage of the statute requiring public roads to have a width of sixty feet, and always up to the present time kept fenced in at such width of forty feet, must remain at such width until the county commissioners by proper proceedings extend its width-. A mere order by the commissioners,after the passage of the statute, requiring a resurvey of the road and establishing it as a public road without notice to any one, will not have the effect of establishing its width at sixty feet.
    Appeal from the Court of Common Pleas of Hamilton county.
   SMITH, J.

We think the plaintiffs, are «ntitled to th® relief prayed for. The evidence snows that the North Bend road has been in use as a public highway for more than seventy-five years, and during all of that time has been on substantially the same ground, and enclosed by fences occupying practically the same position as those on the ground at the commencement of the suit in 1890, and the usual and average width of the road between the fences has been about forty feet. The trustees of the townships through which it passes, acting under the direction of the county commissioners, were about to open it to a width of sixty feet, and to tear down the fences standing within the additional ten feet on either side of the eenter line of the road, and cut down the trees and other obstruction» thereon.

General Cary testifies that in his boyhood it was reported to be a territorial road. There is, however no record or other proof showing where or how it was established or opened. If it was done by proceeding» under the acts of the territorial legislature, or after the organization of the state government in 1802, the laws of neither required a county road to be of any particular width until the statute of February 26, -1824, when, for the first time, such roads were required to be sixty feet wide. There can be no presumption, then, as against the facts shown, that the road ever was established sixty feet wide.

The proceedings had by the commissioners in 1841-2 had no effect whatever to widen the road to sixty feet. That was simply a proceeding under section 8 of the act of March 14, 1831, then in force, without notice to any one to “resurvey the road” and return a plat and survey thereof. This was done by the viewers and surveyor named, and the plat should simply show a survey of the center line of the road by course and distance, but with no statement or finding as to its width. This report being favorable to the establishment of the road as marked, it was approved by the commissioners; it was ordered that the plat be recorded, and the road established as a public road. This could not have the effect to widen the road as it then stood to sixty feet, and it did not purport to do so; and it is conoeded by counsel for defendants that no other steps have ever been taken which had the effect to establish the width of the road at sixty feet. Decree accordingly.

' Gerard, Lampe & Stallo, for Plaintiffs.

Spiegel & Bromwell, for County Commissioners.  