
    Burrows v. Cosler.
    Where, under the statutes in force in 18G8, contiguous territory was attached to a town corporation for road purposes, a street commissoner of the town might lawfully enter upon and take from the lands situate near a public road needing repair, in such territory! material required and necessary to repair such road, although the land from which the material was taken was in another and different road district.
    Error to the District Court of Greene county.
    Plaintiff in error, who was plaintiff below, commenced an action against defendant for trespass to real estate, before a justice of the peace. Such proceedings were had in the case that it was appealed into the court of common pleas. There plaintiff filed his petition, alleging, substantially, that the defendant had committed a trespass on his land, by unlawfully entering thereon, aud digging and carrying away gravel, sand, etc., to his damage, ninety dollars.
    Defendant answered, admitting that he had entered . plaintiff’s close and carried away the quantity of gravel, sand, and dirt alleged in the petition, doing no more damage than was necessarily incident to a careful and “judicious ” entry thereon lawfully to remove the gravel, etc. Defendant, by way of justification, alleged that at the time of the supposed trespass he was acting as street commissioner for the corporation of the town of Eairfeld, under an appointment made by the municipal authorities thereof; that by agreement lawfully entered into between the municipal authorities of the town of Eairfield and the trustees of Both township, Greene couuty, Ohio, certain territory, lying contiguous and adjoining the town, but outside the corporation limits, had been attached to the corporation to form a road district in Both township; that a portion of a public roadway was within the territory so annexed to the corporation for road purposes, and was in need of repair; that defendant, while acting as such street commissioner, and in the performance of his duty as such officer, entered upon the land of plaintiff, took gravel, etc., for the needful repair of the roadway in his district, and without the corporation limits; that the gravel, etc., was used in the repair of the roadway in the district over which he had supervision, contiguous to and adjoining the town of Eairfield; that the land of plaintiff, from which the gravel, etc., was taken, was woodland, unincumbered by crops of any kind, and was situate near that portion of the public road upon which the gravel, etc., was deposited and used by defendant, and was the only land near the road at the place repaired, and where the gravel, etc., was used, unoccupied and unimproved; that, on the dexnand of plaintiff, defendant, as street commissioner, gave plaintiff certificates for the gravel, etc., taken from Ms land and used in the repair of the road, all of which he ■accepted, except one dated September 6, 1869. Defendant denies all and singular the other allegations in the answer, and prays for a judgment for costs.
    To this answer plaintiff filed his reply, in which he says: ■“ that the close of the plaintiff into which the defendant unlawfully broke and entered, and from which he took gravel, sand, and dirt, as alleged in the said petition, was ■not situate within the corporate limits of the said village •of Fairfield, nor within the limits of the contiguous territory attached to the said village for road purposes, but the ■same was situate wholly and entirely within the limits of another and different road district. Plaintiff’ admits that he received from the defendant a statement purporting to show the quantity of gravel, dirt, and sand, taken by him •iron the plaintiff’s premises, but he denies that he received •or accepted the same in payment of the said gravel, sand, .and dirt so takeu, or in satisfaction or in discharge of the ■supposed trespass, or of the damages he had sustained by reason of the committing thereof.”
    To this reply a general demurrer was interposed. The demurrer was sustained, and the case taken to the district .court on petition in error.
    It was assigned for error in the district court: “that the •court of common pleas erred in sustaining the demurrer to ■the reply, and in giving judgment for defendant.”
    Proceedings in error are prosecuted here to obtain a reversal of the judgments of the lower courts, and to that .end it is assigned for error: 1. That the district court •erred in affirming the judgment of the court of common pleas in sustaining the demurrer to plaintiff’s reply. 2. That defendant, as street commissioner of the town of Fairfield, had no power or authority to enter upon and take gravel, etc., from the premises of plaintiff, the same 'being without and beyond the limits of his road district.
    
      
      H. F. Howard, for plaintiff in error.
    
      C. W. Dewey, for defendant in error.
   Ashburn, J.

The assignment of error on the action off the court of common pleas in sustaining the demurrer to the reply to the answer, raises the only material question in this case.

It may be stated thus : Had a street commissioner of an incorporated village, under the laws in force in 1868, where contiguous territory had been attached to the corporation for road purposes, authority to enter upon lands situate in another and different road district, but near to the part of the road to bo repaired, and take therefrom material necessary to repair the road in his district and within such attached territory?

We think he might lawfully do so.

Under the general act regulating roads and highways,, township trustees were required to divide their respective-townships into suitable road districts, and annually makes.uch alterations therein as they might deem proper. It also provided that there should be elected annually, in each road district, by the resident electors, a super visor therefor.

The act of April, 1867 (S. & S. 889), supplementary to-the act to provide for the organization of cities aud incorporated villages, etc., authorizes village municipal authorities and township trustees to attach to a village corporation, contiguous territory for road district purposes, and jfiaces the roads in such attached territory in charge of a municipal -supervisor, denominated a street commissioner, with authority to direct the two days labor on the roads, due from the residents, and collect penalties for non-performance of labor as provided in the statute regulating roads and highways.

By section 3 of the first above named act (S. & 8. 662), supervisors of roads are authorized to enter upon any uncultivated or improved lands, unincumbered by crops, near to or adjoining a public road to be repaired, to cut and carry away any timber, except trees or groves on improved! lands planted or left for ornament or shade, or to dig or-cause to be dug and carried away any gravel, sand, or stone, that may be necessary to make, improve, or repair-such road. Section 27 provides that when timber, stone,, or gravel is taken by a supervisor for the purpose of repairing a road, he shall, on demand of the owner, etc., give-him a certificate showing the number of loads of stone or gravel taken, the value thereof, with the time and purpose-for which the same was taken, and further provides how the same shall be paid for.

The authority of a supervisor in taking the material; contemplated by the statute to repair roads in his district,, is not limited exclusively to the lands situate therein. By a fair construction of the statute, the supervisor may, when necessary, in a proper discharge of his official duty, enter upon any uncultivated or improved lands, unincumbered by crops, situate near to or adjoining the public road to be-repaired, and take therefrom the necessary material, although such lands are situate in another and different road district. The only restriction as to locality, is, that the lands he may lawfully enter upon for material, shall be near to or adjoining the road in his district where the repairs are needed and to be made. The phrase near to,” as-used in the statute is relative and used in contradistinction to remote. Its practical application is -to be determined by the facts and circumstances in each particular-case.

As we understand the pleadings and argument of plaintiff in error, he admits that a street commissioner is authorized to enter upon any uncultivated or improved lauds,, unincumbered, etc., situate in the attached contiguous territory, and take therefrom material necessary to repair the i’oads in such territory. If he can do this, and we have-no doubt but that he has such power, it is derived by necessary implication from the law regulating the duties and conferring authority on supervisors of roads. Ilis power-springs out of the nature of the duties imposed upon him and the needs of the public in analogy to the express-power, in that respect, conferred by statute upon supervisors, by name such. 'While the manner in which a street •commissioner may perform his duties is regulated by municipal ordinance, his power to procure material necessary to keep in repair for general use the roads in his district, located in the territory attached to the corporation, is not derived from that source, but from the general statute by necessary implication. Over such roads, the street commissioner, for the time being, is clothed with the functions •of a supervisor, charged, in respect to keeping them in repair, with like duties, and, we think, with like power over material necessary for repairs.

No question of eminent domain is made in this case, and, therefore, no such question need receive consideration in •disposing of it.

After a careful examination of the statutes bearing on the question, we couclude that the lands of plaintiff in error are subject to the same public burden and servitude in furnishing material necessary to keep in repair the public roads in the territory attached to the corporation, and, under the supervision of a street commissioner, that they would be were the same roads under the charge of a supervisor, by name such.

Judgment affirmed,.  