
    Robert J. Dwiggins et al. v. Jane Denver et al.
    Motion for leave to file a petition in error to the District ■Court of Clinton county. . ,
    This case, originally, was an appeal by land-owners from the action of the board of commissioners for Clinton county, in respect to the alteration of a county road.
    The board, after finding notice to the husbands of the married women who were defendants, of the proceedings before the commissioners, unnecessary, and all the other preliminary and initiatory steps regular and legal, say, “ that inasmuch as there is no application for review, ■etc., the board grants the road on the following conditions, to wit:
    
      “ Regarding the road of a local character, necessary for the benefit, convenience, and utility of the vicinity, as attested by twenty-three citizens, most of whom live in the immediate vicinity of said road altération, but not of sufficient importance to justify the commissioners to pay out of the funds of the county the damages and compensation pertaining to the same, the board, therefore, orders that the petitioners pay, or cause to be paid, or secure to the claimants, the sum of $340 for damages and compensation, viz: To the heirs of Patrick Denver, deceased. And the order will he issued to the trustees of the township (per auditor) after twenty days, for the opening of said road.”
    The Probate Court, on appeal, found that the proceedings before the commissioners, previous to the appeal, were in substance regular and legal. The judgment of the Probate Court was affirmed by the Common Pleas. The District Court reversed the judgments of the Common Pleas and Probate Courts.
    It is to reverse the judgment of the District Court that this motion is prosecuted.
    
      Doan $ White, for the motion.
    
      W. B. Telfair, contra.
   Bv the Court.

The notice required by the 5th section of the act in relation to the opening, etc., of public roads, passed January 27, 1853 (S. & C. 1291), to be given by the principal petitioner to the owner or owners of land through which the road is proposed to be laid out or altered, should be given to husband and wife in a case where the title to the land sought to be appropriated is vested in the wife. By section 2 of the amendatory act of April 8,1866, the husband, in such case, has the right to take an appeal; from which, he appears to be a necessary party in such proceeding.

2. Where the board of commissioners, acting under the direction of section 7 of said act, are of opinion that the-proposed road or alteration is not of sufficient importance to justify the payment of damages by the county, it is error to make a final order establishing the same, until the damages shall have been paid by the petitioners, or otherwise secured, to the satisfaction of the claimants.

3. Where, in such case, the board “ grants the road upon the following conditions, to wit: . . . The board therefore orders that the petitioners pay, or cause to be paid, to-the claimants,” the amount assessed for the damages and compensation, “ and tbe order will be issued to-the trustees of tbe proper townships (per auditor) after twenty days, for the opening of the road,” such action of the board is a final order establishing the road.

Leave refused.  