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damnum- how

§ 8. A writ of ad quod damnum shall be awarded, if de- Writ of ad quod sired by any proprietor or tenant, or if the court see cause awarded. for awarding the same; such writ shall command the proper officer to summon and empannel a jury of freeholders of the county, not related to either party, and not residing within one mile of the proposed road, to meet on the land of the proprietors and tenants over which it is proposed for the road or the alteration in the road to run, at a certain time and place, of which notice shall be given them by the officer.(a)

9. The jury, after being duly sworn by the officer, shall view the lands of the proprietors and tenants so named, and ascertain what will be a just compensation to each for the land proposed to be taken, and the additional fencing which will be thereby rendered necessary, and the damage to the residue of the tract beyond the peculiar benefits which will be derived to such residue from the road. If a person claiming damages has only an estate for life or years, and the remainder in fee belongs to another, the jury shall apportion the damages between them. (b)

be postponed.

§ 10. If the jury shall not be sworn on the day specified, The inquest may or one shall be sworn and disagree, and be discharged, the officer shall execute the writ on such other day as he may appoint, notice thereof being given to the parties interested. 1. If the inquest cannot be completed in one day, the officer shall adjourn the jury from day to day until its completion. 2. When completed, it shall be signed by the jurors and returned by the officer, together with the writ, to the clerk's office whence it emanated.

§ 11. The court shall, upon the report, inquest, and other evidence, determine whether the road shall be established or altered, as recommended by the viewers; and may, on the report of the viewers and other evidence, determine whether a road shall or shall not be discontinued, or whether gates

What jury shall

ascertain and as

sess in their in

quest.

The court to act

on the inquest, &

other evidence in making a decis

ion.

(a) An order, awarding a writ of ad quod damnum, upon an application, must name the day on which the inquest is to be had, which must also be inserted in the writ. The omission is fatal. (Revised Statutes, section 7, article 1, chapter 84; Troutman vs. Barnes, 4 Metcalfe, 338; Irwin & Taul vs. Scobee, 3 Mon., 50.)

(b) An inquest upon a writ of ad quod damnum, in a road case, is fatally defective, which merely ascertains the aggregate amount of damages, without showing on what grounds it is based. (Robinson vs. Robinson, 1 Duvall, 163; Rout vs. Mountjoy, 2 B. M., 302.)

2. The verdict should ascertain: 1. What will be a just compensation to the owner for the land taken. 2. What additional fencing will be rendered necessary. 3. What the damages will be to the residue of the tract, beyond the peculiar benefits which will be derived to such residue from the road. (Robinson vs. Robinson, 1 Duvall, 163.)

may or may not be erected across a road; and if the decision be in favor of erecting gates, the court shall fix the site of such gates, and the description of gate to be erected, which, in all cases, shall be done at the cost of the applicant.

streets in cities and towns.

§ 12. Where an application is made to open a road for Extension of the the convenience of traveling to an established town, and the applicants are willing to pay the proprietors a fair compensation for the land to be condemned, and the cost of opening and cost of procedure, it shall be deemed to be prima facie evidence of the necessity of the proposed road for the convenience of travel, that it lies in the right line extended of a street of a city. But this rule shall apply only to an extension of not exceeding two miles beyond the limits of a city that, by the last preceding Federal census, had over fifty thousand inhabitants, and to an extension not exceeding one mile where the city had less than that number. At the option of the applicants, a road made under this section may be made of the full width of the street of which it is an extension. Nothing in this section shall prevent a county court from opening a road along the extension of a city street at the expense of the county levy, in whole or in part, in any case where it would have done so but for the enactment thereof under the provisions of this chapter.

§ 13. Before any order shall be made appointing viewers Notice of appli- to report on a proposition to discontinue a road, or to erect

cation to discontinue a road or erect a gate.

If occupant fail

to obey order of court,

must execute it.

gates across a road, the person applying for such order shall give one month's previous notice of such application, by notice, in writing, posted up at the court-house door of the county, and at three of the most public places in the vicinity of the road.

court in respect of gates.

14. The county court may, after the occupant of the Duty of county premises upon which gates shall be erected across a road has had ten days' previous notice of the proceeding, order the surveyor thereof to have the gates repaired, removed, or abolished (if the public good requires it), at the expense of the occupier of the land. But the order shall allow the occupant reasonable time to repair, remove, or abolish the gates, and to remove or change his fences, so as not to endanger the crop or other property of the occupant.

15. If the occupant shall fail to repair, alter, or abolish the gates as ordered by the court, and the same shall be done by the surveyor under the provisions of the preceding sec

tion, and the occupant shall, on demand, refuse to pay the
expense thereof, the surveyor of the road shall report the
facts to the county court; and it shall, thereupon, enter
judgment against such occupant for the expense and costs.
§ 16. When a road is opened or is altered, the county
court shall levy the amount of damages assessed at the next
court of claims, and the legal costs of the procedure, and the
costs which the defendant shall have expended in his defense;
except that when the record shows that the sum allowed by
the jury to the defendant is not more than the court has
consented to allow him before awarding the writ of ad quod
damnum, such defendant shall be adjudged to pay the costs
occasioned by such writ.

§ 18. If the court shall be of the opinion that the road ought not to be opened or altered, the applicant shall be adjudged to pay the costs of the proceeding.

§ 19. No road shall be ordered to be opened through any lot of land in any town, or through any orchard, or buryingground, or buildings, or any yard, without the consent of the owner.

levied at court of

Damages to be claims.

required to pay.

§ 17. But the court may open or alter a road on condition Applicant may be that all or a part of the sum required to be paid to the proprietor and tenant, and the cost of procedure, shall be paid by the person applying for the same, or on condition that the applicant shall wholly or in part open or alter the road.

fused, cost to fall

If application reon applicant.

Orchards, buryprotected.

ing ground, &c.,

20. Roads shall be opened thirty feet wide, and the Width of a road. limbs and overhanging substances shall be removed by the surveyor thereof to the height of fourteen feet the entire width of the road. But the court may, on proper evidence, increase the width of a road near a town to fifty feet, first paying the proprietor of the land over which it shall run a reasonable compensation therefor, or may diminish the width in other places to not less than fifteen feet.

21. The county court shall have the power to order each or either side of any road, or a part thereof, to be ditched and kept ditched not exceeding three feet deep, and the dirt from the ditches thrown up in the centre of the road, at the expense pro rata, according to the list of revenue tax, of the persons living in that road precinct, to be discharged in labor, and the use of implements, carts, and wagons, or the court of claims may order such improvement to be made at the expense of the county.

Roads may be expense of citi

hed at the

zens or county.

§ 22. Any person who shall willfully fill up such ditch, or Penalty for filling any part of it, or place any obstruction therein, shall be liable to be indicted and fined not exceeding fifty dollars.

up ditch.

ors of roads.

23. The county court shall divide all the roads in each Duty of survey County into precincts, and as often as may be necessary appoint a surveyor in each precinct, whose duty it shall be to superintend the road therein, and see that the same is cleared and kept in good repair, and ditched and kept ditched on one or both sides, when so ordered by the court. No surveyor shall be allowed, unless by consent of the court, to resign his place of surveyor under two years, unless he removes from the precinct.

§ 24. All male persons over sixteen and under fifty years

Who to work on of age, who are able to labor, except licensed ministers of the gospel, shall be assigned to work on some road.

roads.

work.

$25. Every person so assigned to work on a road, who Fine for failure to shall fail to attend with proper tools, without a reasonable excuse, when required by the surveyor of his precinct, or who shall fail to labor when in attendance, or to furnish a proper substitute, shall be fined two dollars and fifty cents for each day he shall fail to attend, or shall attend and refuse to labor, by warrant in the name of the Commonwealth. In case the defaulter be an infant, the fine shall be paid by the father, guardian, or person in whose service he is engaged at the time.

§ 26. The clerk of each county court shall, within ten days after the appointment of a surveyor of a road, deliver a copy of the order to the sheriff of the county, containing a full and complete description of the precinct, and take his receipt therefor. 1. The sheriff, within fifteen days thereafter, shall deliver a copy of the order and the description of the precinct to the surveyor, and return the original to the clerk's office of the circuit court, with the time of the service of the copy indorsed thereon, which indorsement shall be evidence of the facts therein stated. 2. The clerk shall, moreover, fix up in the court-house, once in every year, a list of the names of all the surveyors of roads in his county, designating the precinct of each surveyor. 3. Every clerk or sheriff failing to perform the duties prescribed in this section shall be fined two dollars and a half for each neglect.

Copy of order of what to contain,

appoint ment

and how

List of surveyors to be posted on door of court

house.

Road fines-how expended.

§ 27. Fines collected from delinquents for not working on Acts 1861, 29. roads shall be paid to the surveyor of roads in the precinct in which the funds are collected, to be expended in the improvement of roads under his charge; and each surveyor of roads shall account to his successor in office for the funds so received by him, and pay over any unexpended balance remaining in his hands; and each surveyor shall report annually to the court of claims of his county the amount of fines received by him, if any, and the disposition thereof; and upon failure to do so, he shall be subject to a fine not exceeding ten dollars, to be recovered upon indictment of a grand jury.

cross-roads, &c.

§ 28. Each surveyor of a road shall cause to be erected Finger-boards at and kept up at the forks or crossings of every public road an index on a post or tree, with plain inscriptions thereon, in large letters, directing to the most noted place to which each of the roads shall lead; the cost of which shall be levied at the next court of claims.

§ 29. If a bridge, or causeway, or culvert, shall be necessary on any road, the surveyor shall cause the same to be made, and shall keep it in repair; and for that purpose may, with the consent of the owner, cut and take from the lands of any person adjoining, so much timber, earth, and stone as may be necessary. He shall have the same valued by two credible persons, selected by him for that purpose; but no timber, earth, or stone shall be taken from any town lot. But if, in the opinion of the surveyor, the task of erecting or repairing a bridge or causeway be too onerous to impose on his force, he may report the case to the county court, whose duty it shall be to provide by proper means for the necessity.

§ 30. When any wheel carriage, plough, draught horse, oxen, gear, or driver shall be necessary for the making, altering, or repairing of any road, bridge, causeway, or culvert, if the surveyor cannot obtain the use of them by contract, any justice of the peace may, by his warrant, empower the surveyor to impress such carriages, plough, draught horse, oxen, gear, and driver, as may be necessary, belonging to any person in his precinct. The surveyor shall have the services of such wheel carriage, plough, draught horses, oxen, and driver, as he may impress, valued for the time he uses the same, by two disinterested persons, whose val

Bridges, culverts, and repaired.

&c.-how made

Ploughs, horses,

&c., how obtain

ed for.

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