TITLE 1. be made, shall summon twelve disinterested freeholders of the town, to meet on a day certain, to consider such application. Such freeholders when met, shall be sworn well and truly to examine and certify in regard to the propriety of such discontinuance. $82. They shall then proceed to view such road, and if they shall be of opinion that the same is useless and unnecessary, they shall make and subscribe a certificate in writing to that effect, which shall be delivered to the commissioners of highways, who shall thereupon proceed to decide upon such application. $83. All applications, certificates and other papers relating to the laying out, altering or discontinuing of any road, shall be filed by the commissioners of highways, as soon as they shall have decided thereon, in the office of the town clerk of the town. $84. Every person who shall conceive himself aggrieved by any determination of the commissioners of highways, either in laying out, altering or discontinuing, or in refusing to lay out, alter or discontinue any road, may at any time within sixty days thereafter, appeal to any three of the judges of the court of common pleas of the county, in which such road is situated. But an appeal by one person, and a decision thereon, shall not conclude nor affect the rights of any other person, who shall appeal within the limited period. 42 $85. The judges to whom the first appeal from any such determination shall be made, shall have exclusive jurisdiction of all appeals from the same determination, to the end that their decision when made may embrace the whole subject; and for this purpose they shall suspend all proceedings upon the appeal first made, and upon all other appeals received by them from such determination, until the time limited for such appeals shall have expired. $86. Every such appeal shall be in writing, addressed to the judges, and signed by the party appealing. It shall briefly state the ground upon which it is made, and whether it is brought to reverse entirely the determination of the commissioners, or only to reverse a part thereof; and in the latter case, it shall specify what part. $87. It shall be the duty of the judges to whom the appeal is made, to proceed thereon as soon as may be convenient. Where the determination appealed from was against an application for laying out, altering or discontinuing a road, the judges shall give notice to the commissioners by whom such determination was made. Where the appeal is from a determination in favor of an application for laying out, altering or discontinuing a road, the notice shall be given to the commissioners, and to one or more of the applicants for such road. (42) 2 R. L. 282, § 36; Laws of 1817, p. 32, § 2. In all cases, the notice shall specify the time and place, at which the ART. 4. judges will convene to hear the appeal.43 peal. $88. Every such notice shall be served at least eight days before Notice of apthe time mentioned therein, by delivering the same to one of the commissioners whose determination is appealed from, or by leaving the same at his dwelling-house. If the notice be also directed to an applicant, it shall be served in the same manner. $89. It shall be the duty of the judges to convene at the time and Proceedings. place mentioned in the notice, and to hear the proofs and allegations of the parties. They shall have power to issue process to compel the attendance of witnesses, and may adjourn from time to time, as may be necessary. Their decision, or that of any two of them, shall be conclusive in the premises, and every such decision shall be reduced to writing, be signed by the judges making it, and be filed by them in the office of the town clerk of the town, who shall record the same.1 43 $ 90. Every such judge shall be entitled to receive two dollars, Fees. for every day employed in the hearing and decision of such appeal, to be paid by the party appealing where the determination of the commissioners shall be affirmed: but where it is reversed, to be a charge against the county.43 out road. S 91. Where an appeal shall have been made from a determina- When to lay tion of commissioners refusing to lay out or alter a road, and the judges shall reverse such determination, such judges shall lay out or alter the road applied for; and in doing so, shall proceed in the same manner in which commissioners of highways are directed to proceed, in the like cases. Such road shall be opened by the commissioners of the town, in the same manner as if laid out by themselves. ap $ 92. In case the office of any one of the judges to whom such peal shall be made, shall become vacant before the determination of such appeal, it shall be the duty of the remaining judges named therein, to associate with themselves another of the judges of the same court, who shall act with them in all subsequent proceedings, in the same manner as if he had been originally named in such appeal. Vacancies. $93. No road which has been fixed by the decision of the judges How altered. on an appeal to them, shall be discontinued or altered, so long as such judges, or either of them, shall continue in commission, except by the order of the same judges, or such of them as continue in commission, joined with such other judge or judges, as shall be necessary to make three; such additional judge or judges, to be selected by the person applying for the discontinuance or alteration.44 (43) 2R. L. 282, §36; Laws of 1817, p. 32, § 2. (44) Ib. § 37. Ib. 1b. TITLE 1. Fences to be removed. Ib. Certain acts of commis firmed. $94. If no one of the said judges shall continue in commission, such application shall be made to any three of the judges of the same court, not having any interest in the road so desired to be-discontinued or altered.45 $95. No application made under either of the two last preceding sections, shall be acted upon by the judges, unless the same be accompanied by a certificate, signed by the commissioners of highways of the town in which the road is situated, stating their approbation of such application; and before the judges decide thereon, they shall proceed to view the road, so desired to be discontinued or altered. They shall be entitled to the same compensation as above provided, to be paid by the applicant.46 $96. Whenever the commissioners of highways shall have laid out any public highway, through any enclosed, cultivated or improved lands, in conformity to the provisions of this Title, and their determination shall not have been appealed from, they shall give the owner or occupant of the land through which such road shall have been laid, sixty days' notice, in writing, to remove his fences. If such owner shall not remove his fences within the sixty days, the commissioners shall cause such fences to be removed, and shall direct the road to be opened and worked. 47 $97. If the determination of the commissioners shall have been appealed from, then the sixty days' notice shall be given, after the decision of the judges upon such appeal, shall have been filed in the office of the town clerk of the town.47 $98. The acts and doings of the commissioners of highways of the sioners con- several towns in this state, or of any two of them, in laying out, altering or discontinuing any road or highway, since the thirty-first day of December, one thousand eight hundred and five, and prior to the fourteenth day of April, one thousand eight hundred and twenty-six, are confirmed from the last mentioned day; provided such commissioners, or any two of them, shall have caused a survey of such roads or highways to be filed and recorded in the office of the town clerk of the town. But such confirmation shall not affect any decision of the judges of the court of common pleas, made prior to the fourteenth day of April, one thousand eight hundred and twenty-six, confirming or reversing the determination of the said commissioners; nor any appeal from such determination, made within six months after that day; nor any suits or proceedings which on that day were pending, at law or in equity.48 When roads cease. $99. Every public highway already laid out, that shall not have been opened and worked within six years from the time of its being (45) Laws of 1819, p. 155, § 1. (46) 2 R. L. 282, § 37. (47) Ib. § 39. (48) Laws of 1826, p. 229, § 8. so laid out, and every such highway hereafter to be laid out, that shall ART. 5 not be opened and worked, within the like period, shall cease to be a road for any purpose whatever.49 highways. S100. All public highways now in use, heretofore laid out and What roads allowed by any law of this state, of which a record shall have been made in the office of the clerk of the county or town; and all roads not recorded, which have been or shall have been used as public highways, for twenty years or more; shall be deemed public highways, but may be altered in conformity to the provisions of this Title. 50 S101. It shall be the duty of the commissioners of highways, to Width. order the overseers of highways, to open all roads to the width of two rods at least, which they shall judge to have been used as public highways for twenty years.50 ARTICLE FIFTH. Regulations and Penalties concerning the Obstruction af Highways, and Encroachments thereon. SEC. 102. Five dollars forfeiture for obstructing highway. 103. Where fences encroach on highways, commissioners to order them removed. 104. If not removed as required, party to forfeit fifty cents a day until removed. 105. If encroachment denied, jury to be summoned to inquire into premises. 106. Jury to be sworn, and to hear proofs and allegations. 107 & 108. Finding of jury, how enforced; who to pay costs, &c. 109. No fences to be removed but between first of April and November. 110. When trees fall into highway, occupant to remove them; penalty for neglect. 111. Persons cutting trees without consent of occupant, to forfeit one dollar, &c. 115. If more than one, expense borne by all the occupants benefitted thereby. 118. Commissioners to file an account of such gates in town clerk's office; penalties. obstructing. $ 102. Whoever shall obstruct any highway, or shall fill up or Penalty for place any obstruction in any ditch constructed for draining the water from any highway, shall forfeit for every such offence the sum of five dollars.51 and how to $103. In every case where a highway shall have been laid out, Fences, when and the same has been or shall be encroached upon by fences, erected be removed. by any occupant of the land through or by which such highway runs, the commissioners of highways of the town, shall, if in their opinion it be deemed necessary, order such fences to be removed, so that such highway may be of the breadth originally intended. The commissioners making the order, shall cause the same to be reduced to writing, and signed. They shall also give notice in writing, to the occupant of the land, to remove such fences within sixty days. Every such order and notice shall specify the breadth of the road originally (49) 2 R. L. 277, § 23. (50) Ib. § 24; Laws of 1817, p. 32, § 3. (51) 2 R. L. 277, § 25. TITLE 1. intended, the extent of the encroachment, and the place or places in which the same shall be. 52 Penalty. Proceedings If encroach nied. $104. If such removal shall not be made, within sixty days after the service of such notice, the occupant to whom the notice shall be given, shall forfeit the sum of fifty cents for every day, after the expiration of that time, for which such fences shall continue unremoved. 52 $105. If the occupant to whom notice is given, shall deny such ment be de- encroachment, the commissioners, or some one of them, shall apply to any justice of the peace of the county, for a precept directed to any constable of the town, to summon twelve freeholders thereof, to meet at a certain day and place, to be specified in such precept, and not less than four days after the issuing thereof, to inquire into the premises. The constable to whom such precept shall be directed, shall give at least three days' notice to the commissioners of highways of the town, and to the occupant of the land, of the time and place at which such freeholders are to meet.52 Ib. Verdict, how enforced. jb. When fences to be removed. $106. On the day specified in the precept, the jury so summoned, shall be sworn by such justice, well and truly to inquire whether any such encroachment has been made, and by whom. Such witnesses as may be produced by either party, shall also be sworn by such justice; and the jury shall hear the proofs and allegations which may be produced and submitted. 52 $107. If the jury find that any encroachment has been made, they shall make and subscribe a certificate in writing, stating the particulars of such encroachment, and by whom made; which shall be filed in the office of the town clerk. The occupant of the land, whether such encroachment shall have been made by him, or by any former occupant, shall remove his fences within sixty days after the filing of such certificate, under the penalty provided in the one hundred and fourth section of this Title. He shall also pay the costs of such inquiry; and if the same shall not be paid within ten days, the justice shall issue a warrant for the collection thereof, in the manner provided in the forty-third section of this Title. 52 $108. If the jury find that no encroachment has been made, they shall so certify, and shall also ascertain and certify the damages which the then occupant shall have sustained by such proceeding; which, together with the costs thereof, shall be paid by the commissioners, and shall be a charge in their favor against the town by which they shall have been elected. 52 $109. No person shall be required to remove any fence under the preceding provisions of this Article, except between the first day of April and the first day of November in any year. 52 (52) 2 R. L. 277, § 26. |