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uation, certified by the surveyor, or his certificate of the amount agreed to be paid by him when he obtains the same by contract, shall entitle the owner to have the same levied at the next court of claims.

31. The county court may exempt any person from Who may be ex- Working on a road because of infirmity. No person shall empted from work on road. be compelled to work on more than one road, except in originally clearing out the same.

§ 32. No surveyor of a public road shall call out hands to When road hands work the road on a muster or an election day, or the first

not be called

out.
Notice of call.

day of the term of any court. 1. Two days' previous notice, either written or verbal, of which the oath of the surveyor or person appointed by him to warn in the hand shall be prima facie evidence, shall be given of the day a hand is required to work on a road. 2. A surveyor may call out all or a part of the hands of his precinct at any time, to remove obstructions in a road at other than the regular times of working the same. 3. Such hands so called on and working shall be exempted for the length of time employed, at the regular time of working the road. 4. The surveyor may direct a person liable to work on a road in his precinct to notify the hands, and such person shall be credited with one day's work for such service.

§ 33. When any water-course shall be the dividing line Water-course di- between counties or precincts, the surveyors shall be bound to work to the middle of such water-course, removing all obstructions, and shall keep the fords in good passable order.

viding precincts.

$ 34. The owner or occupier of a ferry shall keep the roads Ferryman to keep leading to and from the same between high and low water

road in repair.

mark in good repair. 1. But if high water ever extends further than to the top of the first principal bank of the river, then the owner or occupier of the ferry shall only keep the roads leading from the same in repair to the top of such bank. 2. The owner or occupier of a ferry shall be subject to the same fines for neglecting his duty under this section that the surveyor of a road is subject to in a like case.

35. When a bridge or causeway shall be necessary on When bridge, a road, and the expense of erecting or repairing the same

&c., to be paid for by county.

is too great to impose on the precinct, the county court of the county shall have the same erected or repaired, and levy the cost thereof on the county.

§ 36. When the county court of any county shall deem it advisable to erect a bridge or causeway over any place between that and an adjoining county, the court shall appoint a commissioner, and notify the court of the adjoining county thereof, and request the latter to appoint a like commissioner; and it shall be the duty of the court so requested to appoint such commissioner. The person so appointed shall meet at the place proposed for erecting the bridge or causeway, and agree on a plan for the same, and contract for the erection thereof; and each of said county courts shall levy the cost of such work on its county in proportion to the number of tithables in each county.

$37. When the county court of one county shall think it expedient to build a bridge or causeway, and shall appoint a commissioner on its part as provided in the preceding section, and the court of the adjoining county shall refuse to appoint a commissioner, or when the county court of one county shall deem it necessary to open a road to the county line for the convenience of traveling to some public place in another, and the county court of such other county shall refuse to continue the road through such county, the circuit court of the county so refusing may issue a writ of mandamus to the county court, requiring it to show cause why an order shall not be entered up directing the appointment of the commissioner, and the erection of such bridge or causeway, or the opening of the road.

§ 38. When the mandamus is returned, the circuit court shall hear and consider such evidence touching the matter as either party may adduce, and shall either dismiss the proceeding or award a peremptory mandamus, as may seem proper.

$ 39. When a public road crosses a dam, race, or pierhead, the owner or occupier thereof shall constantly keep the same in repair at least twelve feet wide at the top, through the whole length thereof, and keep a bridge across the race or pier-head of like width, with strong rails on each side of the pier-head, flood-gates, or any waste cut through or around the dam, under the penalty of one dollar and fifty cents for every twenty-four hours he shall fail to comply with the requirements of this section. But when a mill-dam or pier head shall be carried away by flood, or otherwise be destroyed, without the fault of the owner or occupier, he

Duty of county of bridge, &c.

court in respect

Acts 1854.

county line and

If road made to adjoining, county

court refuses to

continue, circuit

court may be ap

pealed to.

Circuit court to

hear and decide

the points on re

turn
mus.

Owner of a dam,

race, &c., to keep in order for road

passing over it.

structing road by

Penalty for obtrees, &c., defac

ing finger-boards, &c.

Fine against surveyor.

Acts 1860, 103. Howviewers to be appointed when road runs into an adjoining county.

§ 41. When a fence shall be erected in or across a public Penalty for fenc- road, the person erecting or causing to be erected such fence

ing.

shall pay a fine of one dollar for every twenty-four hours the fence shall continue in or across the road. If the owner or occupant of the land upon which said fence is erected shall, after notice from the surveyor or superintendent of the road, fail to remove said fence, he shall be fined one dollar for every twenty-four hours such fence may remain in or across said road after such notice, and it shall be the duty of the surveyor or superintendent to give said notice.

42. When the surveyor of a public road shall fail to perform his duty, he shall be fined not less than ten dollars nor more than fifteen dollars, recoverable by indictment of a grand jury.

§ 43. No appeal shall lie to the Court of Appeals from the decision of a county court ordering a new road to be spect of roads opened, or refusing such order, or ordering an alteration in

Acts 1866.

regulated.

a road, or refusing the same, or discontinuing a road, or
refusing such discontinuance, allowing gates to be erected
across a road, or refusing to allow the same, or abolishing
such gates.
1. But in all such cases the party aggrieved
may prosecute an appeal within one year to the circuit court
of the county, which court shall have jurisdiction, without a
jury, to try the law and facts of the case. 2. And from the
decision of the circuit court either party may prosecute an
appeal to the Court of Appeals (and the latter court shall
have jurisdiction only of matters of law arising on the rec-
ord of such case.)

shall not be liable to such penalty until one month after the dam and pier-head shall be rebuilt or repaired.

$40. Any person who shall fell a tree into a public road, or into any stream of water above a public bridge over the stream, and shall not remove the same within forty-eight hours, or shall cut, pull up, or destroy or deface any stone or post, or finger-board, erected for the direction of travelers, or the indexes, or the inscriptions thereon, shall pay a fine of not exceeding twenty dollars for every such offense; and any person who shall willfully and unlawfully dig a ditch in or across a public road, shall be subject to a fine not exceeding fifty dollars.

§ 44. Whenever the route of a proposed new road commences in one county, and running partly through another,

finally terminates in that in which it commenced, then, and in all such cases, the county court of that county in which said road begins and terminates, shall have the right to appoint viewers to view the entire route in both counties; and shall have jurisdiction to open and establish the same, as now provided by law in cases where the road is wholly within the limits of one county.

$45. Any person or persons owning any large and extensive coal bank, or mine of iron ore, any iron works or stone quarry, within three miles of any navigable stream or railroad in this Commonwealth, shall have the right to apply to the county court of the proper county to establish a road from such banks, mines, works, or quarry, to the most convenient and suitable landing on such navigable stream or depot on such railroad; on which road the court may, if it deem the object of sufficient public importance and utility, allow the applicant to erect and keep a railway, with the necessary fixtures and appurtenances; and the court may further condemn and appropriate to that purpose a sufficient. quantity of ground at said landing for a depot, to be used by the said applicant, not exceeding two acres.

$ 46. No such railway shall be established or permitted, and no such depot allowed, until the court shall have appointed viewers, and proceeded in all respects as in cases of application to establish public highways, under the laws at the time in force, giving to the owner or owners, tenant or tenants of the land over which such road is proposed to be run or made, the same notice, and the same right to claim an assessment of damages, as is given in cases of application to establish public highways.

§ 47. In every inquest which may be had under the provisions of this chapter, the jurors shall, if any of the lands are held for a term of years, or by other tenure less than a fee-simple, apportion the damages between the holder of the particular estate and those in reversion or remainder.

GEN. STAT.-49

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48. No such road or depot shall be established until the Damages to be damages assessed by the jury are paid or tendered.

paid before road established.

$49. The court shall, by its order, make the necessary requisitions on the applicant to make and keep in repair, at suitable points on said road, suitable grades and causeways, to enable the owners of the land to pass the same; and the occupants of said road shall at all times be liable to the

Suitable grades &

passways must be

prepared a kept

up.

2 R. S., 294. Private

may be establish and herein of the

ed to what points,

proceedings to do

§ 50. If the applicant indicates in his motion the time for Damages to be which he wishes the road to be condemned, the damages

assessed in ref

the applicant re

quests road to ex

erence to the time shall be assessed in view of that time, at the expiration of which the road-bed shall revert to the original proprietor of the land or to his vendee.

ist.

So.

owner for the value of any stock killed or injured by the running of cars on said road.

ARTICLE II.

Passways.

§ 1. Whenever it shall appear to a county court that it is necessary for a citizen to have a private passway over the land of one or more persons in the county, to enable him to attend courts, elections, a meeting-house, a mill, a warehouse, ferry, to pass from one tract of land to another owned by him, or railroad depot most convenient to his residence, the court shall appoint viewers, as in case of a road, who, being first sworn to discharge their duties faithfully and impartially, shall go upon the lands of the person through which the passway is proposed, whether arable or not, and shall report to the court whether or not a private passway is necessary to the applicant for the purpose aforesaid; and if favorable to the passway, they shall in their report designate the exact route for the same, by metes and bounds, course and distance, and the width thereof, which in no case shall exceed twenty feet. (a)

§ 2. The applicant for viewers shall give the persons Notice of appli- through whose land the passway is proposed ten days' previous notice of the intended application.

cation.

(a) The use of a passway, to create a presumption of a grant, must have been claimed and enjoyed as a right, and not merely as a privilege, which the proprietor of the land might have withdrawn at his pleasure. (Bowman vs. Wickliffe, 15 B. M., 99; Hall vs. McLeod, 2 Metcalfe, 101.)

2. A fixed determinate locality is also necessary to justify a presumption of grant. (Ibid.)

3. To enable a purchaser to claim a right of way through the lands of his vendor, he must show that such a passway is indispensably necessary to the enjoyment of the land conveyed to him. (Hall vs. McLeod, 2 Metcalfe, 100.)

4. Where the proprietor of land has a passway through it for his own use, the mere fact that he has permitted others to use it for half a century would confer on them no right to its use. (Ibid.)

5. A verbal agreement to give a private passway over the lands of the promisor is within the statute of frauds and perjuries. (Ibid.)

6. A private passway cannot be created by dedication; a public highway may be. (Ibid.)

7. A sale of a part of a tract of land by the patentees in 1807 is held to have implied a grant of an indispensable outlet or passway through the remainder of the tract; and a subsequent purchaser of the then unsold land is held to have taken the conveyance subject to that inci

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