Act of March 3-December 15, 1835, Ses. Acts 1834-5, ch. 77.

costs in court, and direct them to be paid to those respectively entitled thereto. But if they shall be of opinion that the said road ought not to be opened, the costs of such inquest shall be adjudged against the party applying for the same. [The several county courts in this commonwealth shall be, and they are hereby authorized and empowered, immediately upon the return of any summons issued to the proprietors or tenants of lands through which any public road is proposed to be conducted, as directed by the third section of the [act of 1835-this section,] if they shall be of opinion, all the circumstances being weighed, that the road applied for ought to be opened, to allow to the proprietors or tenants of the lands through which such road is proposed to be opened, such damages as they shall appear, from the report of the commissioner or commissioners of roads, to be entitled to receive, or any sum which they may be willing to accept in lieu thereof; and to order the said road to be established and opened the damages so allowed, together with the costs of surveying, viewing and locating said road, to be paid out of their next county levy. But if they shall be of opinion that the said road ought not to be established, the costs of surveying, viewing and locating it shall be adjudged against the person or persons applying for said road: Provided, however, That if, upon the return of the summons aforesaid, any of the persons summoned shall desire it, the said court shall order their clerk to issue a writ of ad quod damnum, as prescribed by the said third section of the act aforesaid, and upon the return of the inquest as provided for by said act, the court shall proceed to consider whether, all the circumstances being weighed, the said road ought to be opened or not; and if they shall be of opinion that it ought, they shall order it to be opened and established: and the damages found by the jury, together with the costs of surveying and locating said road, and all the costs in court of the petitioner or petitioners for said road, shall be paid out of their next county levy. But if they shall be of opinion that said road ought not to be opened, the costs of the inquest and of surveying, viewing and locating said road, shall be adjudged against the person or persons applying for said road: Provided, however, That if the damages found by the jury shall not exceed the amount of damages which the court had consented to allow the person or persons demanding such writs of ad quod damnum, before said writ was issued, the costs of the inquest, together with all the costs in court of the person or persons applying for said road, which arose after the writ of ad quod damnum was demanded, shall be adjudged against the person or persons demanding such writ of ad quod damnum, whether the said road be established. or not. Act of March 30, 1837, Ses. Acts 1836-7, c. 87, p. 80, § 2.] But it shall not be lawful for any court to order a road to be opened through any lot of land in any town, without the consent of the owner and tenant thereof. In estimating the private damages arising from additional fencing, the jury shall consider and report whether the damages could be lessened, and how much, in case a gate were allowable to the party complaining, and allowed by the court to be erected on the road.

4. The several county courts shall have power to discontinue any public road, whenever the same shall cease to be a public convenience. Any person intending to apply for the discontinuance of any road, shall give at least one month's notice, by advertising the same at the door of the courthouse of that county through which the road passes. On application to any county court for discontinuing a road, the said court shall refer such application to some two or more of said commissioners of roads, as before directed, who being first sworn, shall view the same, and on their oaths say, whether in their opinion any public inconvenience will result from discontinuing the same; and upon the report of said commissioners, in writing, to the said court, the court

Act of March 3-December 15, 1835, Sess. Acts 1834-5, ch. 77.

shall thereupon, as well as upon other evidence, have full power to keep open or discontinue the said road. Nothing in this act shall be construed to authorize any county court to discontinue any public post road, nor to abridge or alter the power of discontinuing roads by substituting others in lieu thereof. 5. The several county courts shall divide all the public roads into precincts, and as often as it shall be necessary, appoint a surveyor over each one, whose duty it shall be to superintend the road within the same, and see that it be provided with drains, cleared, smoothed of rocks and obstructions, and that it be otherwise kept in good repair, and secure from the falling of dead timber therein; which surveyor shall continue in office until another shall be appointed by the said court in his stead: Provided, That no surveyor be required to serve more than two years in continuation.

6. The clerk of every county shall, within ten days after the appointment of any surveyor of a road, deliver a copy of the order to the sheriff of the county, under the penalty of five dollars; and the sheriff shall, before the next court to be held for the said county, after the receipt of such order, deliver a copy thereof to the surveyor, if he be found within the county, and return the original to the clerk's office, with an endorsement thereon, stating the truth of the case, under the penalty of five dollars; which, in all cases, shall be conclusive evidence of such surveyor having notice of his appointment; which appointment shall be obligatory upon him, unless upon application to the county court first had after he has received notice thereof, he shall be discharged by said court from its duties. The sheriff shall also deliver to the surveyor, at the same time, an abstract of the duties herein required of him; which said abstract, made out either in a printed form, or in a plain and legible manuscript, at the expense of the county, shall be delivered to the sheriff by the clerk thereof; and each clerk shall moreover, once in every year, fix up in the courthouse a list of the names and precincts of all the surveyors of roads in his county, under the penalty of five dollars for every neglect.

7. All male persons of the age of sixteen years or more, and under sixty years of age, not excused by order of court, shall be appointed by the court to work on some public road. For every person so appointed, who, when required by the surveyor placed over him, shall, without legal cause or disability, fail to attend with proper tools for clearing the road, or shall refuse to work when there, or to find some other male person equally able to work in his room, a sum not exceeding one dollar, (to be fixed by the court of each county respectively, as often as may be deemed necessary,) for every day's failure, shall be paid by himself, if a free man of full age, if an infant, then by his parent, master or guardian, and if a slave or servant, then by his overseer, if he be under one, or otherwise by his master, and said sum shall be recoverable by the surveyor, with costs, before a justice of the peace, and after deducting the costs accruing on his warrant or information, shall be applied by him as it may be necessary, in the improvement and repair of the road, for failing to work on which the penalty was incurred. But if the person so failing, shall tender to the surveyor within twenty days thereafter the amount of the penalty so fixed as aforesaid, it shall be received as a full and satisfactory discharge thereof; and it shall be the duty of the surveyors of roads to render to the courts of their counties respectively, at the court when their county or road levy is usually laid, a strict account of all moneys received by them as aforesaid, and the manner in which the same shall have been expended, which said accounts shall be verified by affidavit. All moneys on hand and unexpended at the time of making out said account, shall be delivered over therewith by the surveyors to the court, and received by it as a part of the depositum, to be applied to the uses of roads or bridges. And if

Act of March 3-December 15, 1835, Ses. Acts 1834-5, ch. 77.

any surveyor shall fail to render such account, he shall be liable to a penalty not less than twenty nor more than fifty dollars, judgment for which may be rendered by the courts of the counties respectively, ten days previous notice of such proceeding having been given to such person or his legal representatives. Nothing in this section contained shall debar the county courts from uniting the labourers of several precincts, when they shall deem it necessary or proper to do so, for the purpose of opening a new road, or repairing great damages casually occurring to an existing one: Provided, That in either of these cases, not more than ten days of extra labour for both within the year, be demanded of the person regularly assigned and liable to labour on some other precinct. Should the surveyor think it expedient, he is hereby authorized, instead of prosecuting the offences herein before mentioned, to make out a list of the persons chargeable therewith, and return the same upon oath to some justice of the peace, who shall forthwith summon such persons to appear before him, and shall, upon trial, give judgment according to the right of the case. Any fines imposed by the justice so acting, shall be paid over to the surveyor, to be expended and accounted for by him as herein directed.

8. Every surveyor of a road shall cause the same to be constantly kept well drained, cleared and smoothed, and thirty feet wide at the least, unless the court shall, by order entered of record, authorize a less width. [It shall be lawful for the county court of any county, whenever it shall deem it necessary and proper to cause any road or any part thereof adjoining any town or village in the said county to be widened, so as the width thereof shall not exceed sixty feet, and the length thereof contiguous to said town or village, eight hundred and fifty yards; and in order to widen the said road the same means shall be adopted that are necessary to open a new road: Provided however, That no garden, orchard, yard or curtilage, or part thereof, shall be condemned for the uses aforesaid; and that no order shall be made to widen a road as aforesaid, unless a majority of the acting justices be present. Act of Feb. 18, 1840, c. 73, § 2, p. 59.] And at the fork or crossing of every public road, shall cause to be erected and kept in repair from time to time, a stone, or otherwise 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 said roads shall lead, and may take stone or wood for that purpose, from any adjoining land, and for the expense of setting up and inscribing such stones, posts or indexes, and keeping them in repair, the surveyor shall be reimbursed by the county court in their next succeeding road levy; and where bridges and causeways are necessary, the surveyor shall cause them to be made twelve feet broad at the least, convenient and safe, and shall keep the same in repair, and for that purpose, may cut and take from the lands of any person adjoining, such and so much timber, earth or stone, as may be necessary, the same being first viewed and valued upon oath, by two honest housekeepers appointed for that purpose by a justice of the peace, unless the owner shall freely give such timber, earth or stone for that use; but where a road leads through a city or town, the surveyor shall not take any timber, stone or earth, from any lot within the town, without the permission of the owner, but shall take the same from lands nigh or adjacent to the said town, where it will do the least injury to the proprietor; and where the assistance of wheel carriages or ploughs is necessary for making or repairing any roads, bridges or causeways, any surveyor first obtaining the assent and warrant of a justice of the peace, may im press such necessary carriages, ploughs, draught horses or oxen, with their gear and driver, belonging to any persons who are appointed to work on the road, and shall appoint two honest housekeepers, who, upon oath, shall value,

Act of March 3-December 15, 1835, Ses. Acts 1834-5, ch. 77.

by the day, the use of such carriages, ploughs, draught horses and oxen, with their gear and driver; which valuation, with a certificate from the surveyor how many days they were used in the work, shall entitle the owner to an allowance for the same, in the next road levy: [Provided, That it shall not be necessary for a surveyor or overseer of any precinct of public road to procure a warrant of impressment for that purpose, if he can by voluntary agreement obtain the use of all necessary teams and implements for working on his precinct of road, or the necessary materials for its construction or repair. But in all cases, the value of such teams, implements or materials, shall be ascertained in the mode provided by the law under which the said surveyor shall be acting, and the amount thus fixed shall be allowed by the court. Act of Mar. 31, 1838, Ses. Acts, c. 127, § 2, p. 91.] And in the like manner shall the owner of timber, stone, or earth, taken for bridges or causeways, or other modes of improvement, be entitled to the valuation thereof in the next county or road levy, upon a certificate of the two housekeepers who valued the same; and when it shall be necessary to cut a ditch through any lands adjoining a public road for the purpose of draining the same, it shall and may be lawful for the surveyor of such road to cause the said ditch to be cut for that purpose, (provided the same be not cut through any yard, garden or lot in any town, without the consent of the owner thereof,) and if any owner or tenant of such land shall think himself injured thereby, upon his application to any justice of the peace for said county, the said justice shall issue his warrant to three discreet and disinterested freeholders, requiring them, after having been first duly sworn, to view the said lands and ditch, and ascertain the damages which such owner or tenant may have sustained by the cutting thereof, which assessment shall, by the said freeholders be reported to their next levy court, and the damages so assessed shall be levied and paid in the same manner as other road expenses; and hereafter, every surveyor of a road who shall neglect to perform the duty hereby required of him by law, shall forfeit and pay a sum not less than ten, nor exceeding thirty dollars; and the surveyors of roads now acting, or that may hereafter be appointed, shall be entitled to receive a reasonable compensation, to be adjudged of by their respective county courts, not exceeding one dollar and twenty-five cents for every day they may be necessarily employed in working on and repairing the said roads, nor exceeding ten dollars in any one year, to be paid them out of the county or road levy, unless the court, for extraordinary services, may think proper to make some additional allowance.

9. The courts of the several counties shall have full power to levy as much money as will be necessary to pay for the removal, by gunpowder, of the obstructions of rock from the public road, and to purchase such tools as shall be deemed necessary for that purpose, and prescribe the manner in which such tools shall be preserved and transferred from one surveyor to another.

10. When a bridge or causeway shall be necessary, and the surveyor with his assistants cannot make or maintain the same, the court of the county are empowered and required to contract for the building and repairing such bridge or causeway, and to levy the charge thereof in their county or road levy; and when such bridge or causeway shall be necessary from one county to another, the court of each county shall join in the agreement for building and repairing the same, and the charge shall be defrayed by both counties, in proportion to the public tax or assessment paid by each. Upon every such contract or agreement, bond and security shall be given by the undertaker, payable to the governor and his successors, for the use of the county or counties, as the case may be, with condition for performing the same, and may be prosecuted at the costs, and for the benefit of the county or counties sustaining a loss by the

Act of March 3-December 15, 1835, Ses. Acts 1834-5, ch. 77.

breach thereof, as often as it shall happen, until the whole penalty of the bond shall be paid. And all such contracts made by county courts, or others appointed by them, shall be available and binding upon the justices and their successors, so as to entitle the undertaker to his stipulated reward in the county or road levy. But no order for the erection of any bridge or bridges shall be made by the court of any county, unless a majority of the acting justices of such county shall be present at the making of such order, or unless the court of such county shall have signified their intention of making such order, at least one month previous to making the same, and shall have caused a statement thereof to be entered of record, with directions to the sheriff of the county to summon the justices of said county to attend at the next term for the purpose aforesaid. [It shall not hereafter be lawful for the county court of any county in this commonwealth, to enter into any contract for the opening of any road, or the building of any bridge or causeway in their county, the charge whereof is to be provided for in the county or road levy, under the existing laws now in force, where the amount contracted to be paid shall exceed the sum of two hundred dollars, unless all the acting justices of such county shall have been previously summoned for that purpose, and a majority of them shall be actually present at the time of making the order for any such contract; any thing in any law to the contrary notwithstanding. Act of Feb. 18, 1840, c. 73, § 1, p. 59.]

11. When the court of one county shall judge a bridge or causeway over any place between that and another county to be necessary, it shall notify the same to the court of such other county, and require it to appoint three persons to meet at said place, on a certain day to be named by the court requiring the same, to confer with three others to be appointed by the requiring court; which six persons, or as many of them as meet, being not fewer than three, shall have power to agree on the manner and conditions of doing the said work, and shall make report thereon to their respective county courts. If the court so required shall fail to appoint persons to act on its behalf, or to do, on its part, what should be done towards supervising, executing and paying for the said work, the court which made the requisition shall apply to the superior court of law for the other county, for a writ of mandamus, commanding the said court to do what it has failed to do, or to shew good and sufficient cause for such failure; upon the return of which writ, the said superior court shall forthwith quash the same, or order further proceedings thereon, as to it may seem right; and the said superior court shall also proceed against either court, for failures charged by the other, as it shall deem just. The same method of proceeding by way of mandamus shall be had, where a county court shall cause a road to be opened for the purpose of passing to some public place in another county, but where the court of such other county shall refuse a continuance thereof within its limits.

12. As a means of defraying the expenses of opening, establishing and repairing the public roads, of erecting and repairing bridges and causeways, or making other improvements thereon, the several county courts that deem it proper, are hereby authorized to assess and levy upon each tithable of their respective counties, at the court held in May or June eighteen hundred and thirty-six, and thereafter at the court held in February or March in each year, a sum not exceeding one dollar; and upon all property other than tithables, a sum not exceeding thirty-five per cent. upon the amount imposed thereon by existing laws for the assessment and collection of the general revenue: Provided, however, That nothing in this section contained shall be construed to subject any of the towns of this commonwealth to any assessments or levies to which they would not have been liable had this act never passed. [So much