
    THE STATE (ERKURIES B. DUNHAM AND OTHERS, PROSECUTORS,) v. RUNE S. RUNYON AND OTHERS.
    Surveyors of the highways are bound, in laying out a road, to assess the damages of all landholders whose lands are taken that are not applicants; if they do not their return is void, and it is no sufficient reason for the omission that the land owner made no claim.
    On ceiiiorari to Middlesex pleas.
    In the branch court, before Elmer and Potts, justices.
    
      Speer, for the prosecutor.
   Elmer, J.

In this case six surveyors of the highways of the county of Middlesex, by their return, dated December 2, 1852, vacated part of a certain road in the township of Piscataway, and laid out another road in lieu of that vacated. Accompanying their return, the surveyors made a certificate that they had “ assessed the lands through which the aforesaid road passes.” Upon inspecting the certificate, it appears that certain of the owners of the land are stated to be applicants, and opposite to the name of the other owners is written no claim;” but no sum is assessed for the damages sustained by any of the said owners, nor is it found that they have sustained none.

The applicants for the road were not by law entitled to any damages. But it does not follow that other owners were not entitled to damages because they made no claim. The law makes it the duty of the surveyors to assess the damages, whether the owner appear and claim them or not. In the case of The State v. Garretson and others, (3 Zab. 388) it was held that if the surveyors omit to assess the damages of the landholders the return is wholly void. The return of the surveyors in this case, vacating the one road, and laying out the other, must therefore be set aside.

Potts, J., concurred.

Cited in State v. Pierson, 8 Vr. 368.  