
    DEFECTIVE PROCEEDING FOR VACATION OF AN ALLEY.
    Common Pleas Court of Montgomery County.
    Perry A. Morrow, et al., v. Ferdinand Wittler, et al.
    
    Decided, 1924.
    
      Freeholder — Definition of — Rights of not Conferred by Acquiring a Contract of Sale — An Alley is not a Public Road.
    
    1. A contract for the sale of real property does not render its possessor a freeholder or render him competent to sign an application to county commissioners for the vacation of a public road.
    2. The authority conferred on county commissioners by Section 6860 to vacate a public road upon application of at least twelve freeholders of the county resident in the vicinity of the proposed improvement does not include authority to vacate an alley.
    3. A term used in a statute and not therein given special definition should be- construed in accordance with the common law meaning.
    
      
       Affirmed by the Court of Appeals.
    
   Snediker, J.

This plaintiff here sues to enjoin the defendant, Wittier, from maintaining a wire fence that he has erected at the north and south ends of a portion of an alley in the town of Liberty, this county, and to further enjoin him from appropriating it to his own private use.

Since the trial of this case, at the suggestion of the court, the board of county commissioners of Montgomery county have been made parties defendant, have entered their appearance, have waived the issuing and service of summons upon them and have consented to a. submission of the case on the pleadings filed and on the evidence heard. We take their action in this regard to include a request on their part to the court that a finding be made with respect to the resolution passed by the board vacating the portion of the alley in question, and that such order issue in pursuance of such finding as the equities in the case .may require.

The alley was laid out on Peter Becker’s plat of the town 'of Liberty. This plat is of record in Plat Book 1 of the records of this county, at page 16. There does not appear in the certification of the plat any ¡^articular dedication of the streets and alleys, but their long usage as such and the improvement of abutting property with reference thereto make a common law dedication which we are bound to recognize, i .The proceedings- for vacation before the county commissioners were brought' under an act which went into effect on the •first -Monday of September of 1915, and which is now known as -Section 6860 et seq., of the General Code. Section 6860 reads:

.“The county commissioners shall have power to locate, establish, alter, widen, straighten, vacate or change the direction of roads as hereinafter provided. This power extends to all roads-within the county except inter-county and main market roads.” , .

The' next section' refers to the width of roads located and established by the commissioners.

Section 6962 reads:

“Applications to locate, establish, alter, widen, straighten, vacate or change the direction of a public road shall be made by petition to the county commissioners, signed by at least twelve freeholders of the county residing in the vicinity of the proposed improvement,” etc.

One of the contentions made in this case is that some of the thirteen signers to the petition were not freeholders of the county residing in the vicinity. The evidence shows that three of them are called in question, and the proof is-that they were not' in possession of deeds but do -hold contracts of sale for the properties in which they have interests in the town of Liberty.

'' The county commissioners are an administrative board, and to them is committed by law the administration of the county affairs. They are invested with only such powers as are expressly conferred by statute or necessarily implied therefrom.

In acting upon a petition filed with them under favor of Section 6802 et seq., they are, therefore, bound by the provisions of the act with respect to the character of petition that they may recognize and with regard to their acts subsequent to the filing of such petition.

As Section 6862 requires that the petition for vacation shall contain the names of at least twelve freeholders of the county, if this petition does not so contain such required number of names, then the board of county commissioners are not privileged to íeceive it or act thereon.

The inquiry then presents itself as to the proper definition of “freeholder.”

We do not find anywhere in the Code a legislative definition of what shall be regarded as a freehold estate. This being true, the rule laid down-at Section 398 of Lewis-Sutherland Statutory Construction must govern us. It is:

“Where a statute uses a word which is well known and has a definite sense, at common law or in the written law without defining it, it will be presumed to be used in that sense and will be so construed, unless it clearly appears that it was not so intended.”

This is supported by numerous authorities, to some of which we refer. . |

In the 181 Ill., at page 504, the Supreme Court say:

“Terras contained in a statute without explanation as to the sense in which they are employed should be construed in accordance with their common law significance.”

In the 1st Black (Supreme Court of the United States), at page 459, the 3d syllabus is:

“It is a sound rule that whenever a legislature in this country uses a term without defining it, which- is well known in the English law, it must be understood in the sense of the Englsh law.”

In the 3d Dey (Connecticut Supreme Court), at page 211, the language of the court is:

“It is a sound rule that whenever our legislature use a term without defining it, which is well known in the English law, and there is a definite and appropriate meaning affixed to it, they must be supposed to use.it in the sense in which it is understood in tl:e English law.”

In the 1st Head (Teim. Rep.), at page 351, the Supreme Court say:

“Statutes are not presumed to make any alteration in the common law further or otherwise than the act expressly declares, and are to be construed as near to the rule and reason of the common law as may be.”

In defining the word “freehold” in the section of the Code under consideration it is, therefore, our duty to give it the common . law definition, and that is:

“A freehold is an estate for life or in fee simple.”

It is the contention of counsel for defendant Wittier that the contracts held by the signers of the petition who have not deeds at least vest them with an equitable freehold. If the foregoing rule of construction is to be adopted by us, such equitable freehold, if it be possessed by those holding the contracts of sale, docs not qualify them as signers of the petition under the Code. The common law and its definitions are distinct from equity and its definitions, in the sense that the one is an enlargement or extension of the other which in the construction of this section we are not privileged to make.

There is another point which we regard as important and, perhaps, conclusive of the rights of the petitioners and, therefore, of the defendant Wittier) Is an alley a road?

In the 116 Mo., at page 265, it is said to be “simply a narrow passage-way.”

Webster defines it as a narrow passageway, especially a walk or passage in a garden or park, bordered by rows of trees or. bushes; a bordered way; a narrow passage or way in the city as distinct from a public street.

If it be regarded as distinct from a public street, by reason of its peculiar character, then we must also regard it as distinct from a road, for the term “road” is generic. A street is a kind of road, and an alley is something else.

The term “road” as found in the act now appearing in the General Code and here in question must be defined by the court, after a consideration of all the terms and provisions of the act. So, taking this law by its four corners, we are unable to say that the word “road” as here used includes an alley.

Having- reached these conclusions with respect to the two things which we have already discussed, it is unnecessary for us to take up any other elements of the ease.

Our finding- is that the resolution of the board of county commissioners should be vacated and that the defendant Wittier should be enjoined as prayed for in the petition.  