affect the right. The width of the way and the extent of the servitude is measured by the user,2 unless it is based upon a claim and color of right supplied by defective proceedings to establish the way, in which case the extent of the easement may be measured by such proceedings.3

The existence of a street by prescription is generally proved by evidence that it has been known and used as such by the public for the necessary period of prescription.4

It has been held that, as prescription presupposes a grant, the public cannot acquire a way by prescription as against married women, minors, or insane persons, incapable of making a grant; but this doctrine has not passed unchallenged. If the existence of a highway by prescription can be based upon the presumption that the way "was at some anterior period laid out

390; Owens v. Crossett, 105 Ill. 354; South Branch R. Co. v. Parker, 41 N. J. Eq. 489.

1. Howard v. State, 47 Ark. 431; Gentleman v. Soule, 32 Ill. 271; 83 Am. Dec. 264; Ross v. Thompson, 78 Ind. 90. Compare Kelsey v. Furman, 36 Iowa 614; State v. McGee, 40 Iowa 595.

2. Bartlett v. Beardmore, 77 Wis. 356; Ehret v. Kansas City, etc., Co., 20 Mo. App. 251; Harlow v. Humiston, 6 Cow. (N. Y. )189; Davis v. Clinton, 58 Iowa 389; State v. Trask, 6 Vt. 355; 27 Am. Dec. 554; Epler v. Niman, 5 Ind. 459; Waltman v. Rund, 109 Ind. 366; Hart v. Bloomfield Tp., 15 Ind. 226; Kirk v. Smith, 9 Wheat. (U. S.) 288; Hinks v. Hinks, 46 Me. 423; Mt. Olive Tp. v. Hunt, 51 N. J. L. 274. But see State v. Morse, 50 N. H. 9; Bumpres v. Miller, 4 Mich. 159.

If a street has been used and built up along a particular line, and the adjoining owners have acquiesced in the line so built upon, and treated it as the true line of the street for forty or fifty years, they cannot be permitted to change or correct the course of the street, by showing that the surveys laying it out give it a different direction. Smith v. State. 23 N. J. L. 130.

3. Manrose v. Parker, 90 Ill. 581; "Highways by Limitation," 7 Cent. L. Jour. 123, 125. Compare Com. 7. Old Colony, etc., R. Co., 14 Gray (Mass.) 93; Waltman v. Rund, 109 Ind. 366. And see Bolton v. McShane, 79 Iowa 26.

Thus, where a highway three rods wide was commenced by an actual recorded location, but the proceedings were irregular, it was held that, after

twenty years' adverse user by the public, the way existed of the full width of three rods as originally located, although the part traveled during the twenty years was not so wide. Pillsbury v. Brown, 82 Me. 450. Compare Wayne Co. Sav. Bank v. Stockwell, 79 Iowa 26.

4. Com. v. Coupe, 128 Mass. 63; Woburn 7. Henshaw, 101 Mass. 193; 3 Am. Rep. 333; Mosier v. Vincent, 34 Iowa 478; Eyman v. People, 6 Ill. 4; Hampson v. Taylor, 15 R. I. 83. See also Barker v. Clark, 4 N. H. 380; 17 Am. Dec. 428; Jones v. Percival, 5 Pick. (Mass.) 485; 16 Am. Dec. 415; Lawton . Rivers, 4 McCord. (S. Car.) 445; 13 Am. Dec. 741; Rosser v. Bunn, 66 Ala. 89. Compare Speir v. New Utrecht, 121 N. Y. 420.

5. State v. Bishop, 22 Mo. App. 435; McGregor v. Wait, 10 Gray (Mass.) 74; 69 Am. Dec. 305; Reimer v. Stuber, 20 Pa. St. 458; 59 Am. Dec. 744. But see Schenley v. Com., 36 Pa. St. 29; 78 Am. Dec. 359.

6. Watkins v. Peck, 13 N. H 360; 40 Am. Dec. 156; Melvin v. Whiting, 13 Pick. (Mass.) 184.

7. Edson . Munsell, 10 Allen (Mass.)

557.

8. Intervening Disability.-But an intervening disability not existing at the beginning of the period of prescription, will not affect the prescriptive right. Wallace . Fletcher, 30 N. H. 434; Reimer v. Stuber, 20 Pa. St. 458; 59 Am. Dec. 744; Edson v. Munsell, 10 Allen (Mass.) 566; Peck v. Randall, 1 Johns. (N. Y.) 176; Tracy v. Atherton, 36 Vt. 503.

9. See Elliott on Roads and Streets 139, 140.

and established by competent authority," as stated in some of the cases, it would seem that the legal disability of the owner, preventing the presumption of a grant, can make no difference.1

3. Proceedings Under Legislative Authority2--a. JURISDICTION. -Proceedings to establish and lay out highways under legislative authority are so far governed by statutory provisions that it is difficult to lay down general rules of universal application in all the States. The original proceedings are generally instituted before local tribunals of limited jurisdiction, such as boards of supervisors, county commissioners, county judges, street commissioners, or common councils, and, no matter what the title of the tribunal may be, its authority over such matters is of a judicial nature.3 It is essential to the validity of the proceedings that

1. Even if prescription must be based upon the presumption of a grant, it might, as against a married woman, be presumed that her husband had joined her in granting the way, thus rendering the grant effective. See remarks to this effect in the opinion of Strong, J., in Schenley v. Com., 36 Pa. St. 29: 78 Am. Dec. 366.

6,

2. See, also, EMINENT DOMAIN, vol. p. 509; HIGHWAYS, vol. 9, p. 366. 3. Elliott on Roads and Streets, 218; citing State v. Richmond, 26 N. H. 235; State v. Macdonald, 26 Minn. 449; In re Canal Street, 11 Wend. (N. Y.) 154.

They are courts of limited statutory jurisdiction. Doctor v. Hartman, 74 Ind. 221; White v. Conover, 5 Blackf. (Ind.) 462; Stone v. Augusta, 46 Me. 127; Chicago, etc., R. Co. v. Chamberlain, 84 Ill. 333; Northern Pac. Terminal Co. v. Portland, 14 Oregon 24.

The common council of a city, in laying out highways, act, not as agents or officers of the city, but as public officers, vested with quasi judicial functions, and deriving their power from the sovereign authority. The laying out and establishing the way is the act of the State, in the exercise of the power of eminent domain, and this power cannot be destroyed or abridged by the acts of any individual or corporation. The fact, therefore, that persons whose property is so taken, hold it under a covenant of quiet enjoy ment, entered into by the city in its capacity as a municipal corporation, cannot create in their favor an exemption from this common liability. Brimmer v. Boston, 102 Mass. 19.

Authority to Establish and Open Streets. The power to open new streets conferred by a city charter in24 C. of L.-2

17

cludes the power to lay out and establish streets, and is not limited to the opening of streets already shown on the plat of the city and its additions. Hannibal v. Hannibal, etc., R. Co., 49 Mo. 480. See, also, Hannibal v. Winchell, 54 Mo. 172. And power to "open and extend," includes power to construct. Matthiesen, etc., Sugar Refining Co. v. Mayor, etc., of Jersey City, 26 N. J. Eq. 247. But power to "regulate and improve" does not include power to condemn and open. Knowles v. Muscatine, 20 Iowa 248.

The legislature has no power to invest the common council of a municipal corporation with authority to assess the amount of compensation due an owner whose land is taken for a street. Lumsden 7. Milwaukee, 8 Wis. 485.

Where a municipality has complete authority to lay out and open streets, that authority is generally exclusive. Cherry v. Keyport, 52 N. J. L. 544. See Norwood v. Gonzales Co., 79 Tex.

218.

In Illinois, a village street may be opened by sections. People 7. Hyde Park, 117 Ill. 462. See also Ripka's Appeal, 21 Pa. St. 55.

A municipal corporation has not the power or authority to take the property of the State, purchased by the latter for a specific object, for the purpose of appropriating the same for a public street; and such contemplated action will be enjoined. Mayor, etc., of Atlanta v. Central R. Co., 53 Ga. 120.

Nor has it power, unless expressly authorized, to lay a street longitudinally over a railroad track constructed under an express legislative grant. New Jersey, etc., R. Co. v. Long Branch Com'rs., 39 N. J. L. 28. See, also, Milwaukee, etc., R. Co. v. Faribault, 23

the tribunal should have jurisdiction of the subject-matter and of the persons whose lands are affected, but jurisdiction of the person may be waived or given by consent.1

It is in the discretion of the legislature to declare directly the necessity for the taking, or to delegate the power to determine that matter to the appropriate instrumentalities of government;2 but some tribunal must be designated to assess benefits and damages; if none is provided, there can be no valid appropriation of land. Provision need not, however, be made for a jury, unless the constitution so requires. Where the constitution gives the right to a jury, there must be an ordinary jury of twelve men, in the absence of anything in the constitution to the contrary. It is generally held sufficient, however, if a jury is provided for upon appeal. There must be a meeting at the time and place appointed, and the hearing must be at a general and not a special term; but where the hearing has been entered upon, an adjourn

Minn. 167; Prospect Park, etc., R. Co v. Williamson, 91 N. Y. 552; 14 Am. & Eng. R. Cas. 34.

cities

V.

See generally as to the power of to open streets, Shaaber Reading, 133 Pa. St. 643; Bull v. Southfield, 14 Blatchf. (U. S.) 216; Simmons v. Camden, 26 Ark. 276; 7 Am. Rep. 620; Shaffner . St. Louis, 31 Mo. 264; Edgerton v. Huff, 26 Ind. 35; In re Claiborne St., 4 La. Ann. 7.

1. JURISDICTION, vol. 12, p. 299; McCormick v. Pennsylvania Cent. R. Co., 49 N. Y. 303; Hervey v. Edmunds, 68 N. Car. 243; Greer v. Cagle, 84 N. Car. 385; Wilson v. Zeigler, 44 Tex. 657; Iowa, etc., R. Co. v. Retter, 36 Iowa 568; Stoughton v. Mott, 13 Vt. 175; Thatcher v. Powell, 6 Wheat. (U. S.) 119; Folger v. Columbian, etc., Ins. Co., 99 Mass. 267; Davis v. Davis, 36 Ind. 160; In re College Street, II R. I. 472.

The adoption of the city charter, after proceedings for the establishment of a town-way have been commenced before county commissioners, does not oust them of jurisdiction to pass an order, before the city government is organized, for the construction of the way. Durant v. Lawrence, 1 Allen (Mass.) 125.

2. Backus v. Lebanon, 11 N. H. 25; 35 Am. Dec. 466; Pratt v. Brown, 3 Wis. 603; Anderson v. Turbeville, 6 Coldw. (Tenn.) 150; Smeaton v. Martin, 57 Wis. 364; State v. Shawnee Co., 28 Kan. 431; People v. Smith, 21 N. Y. 595; Chicago v. Wright, 69 Ill. 327; Scudder v. Trenton, etc., R. Co., 1 N. J.

Eq. 694; 23 Am. Dec. 756; Fairchild v.
St. Paul, 46 Minn. 540.

"Whether a city will open a street or not is discretionary with it; and the exercise of its discretion either way gives no right to any one who may have miscalculated the final action of the city and expended money accordingly." Collins v. Savannah, 77 Ga. 745.

3. Ames v. Lake Superior, etc., R. Co., 21 Minn. 241; Allen v. Jones, 47 Ind. Pa. St. 445; Comrs. of Highways v. 442; Pennsylvania R. Co. v. Huster, 8 Newby, 31 Ill. App. 378.

4. EMINENT DOMAIN, Vol. 6, p. 613; Livingstone v. Mayor, etc., of N. Y., 8 Wend. (N. Y.) 85; 22 Am. Dec. 622; Vanhorne v. Dorrance, 2 Dall. (U. S.) 308; Backus v. Lebanon, 11 N. H. 19; 35 Am. Dec. 466, and note; Copp v. Henniker, 55 N. H. 189; 20 Am. Rep. 194; Trigally v. Memphis, 6 Coldw. (Tenn.) 382.

5. Lamb v. Lane, 4 Ohio St. 167; Cooley's Const. Lim. (4th ed.) 394; 2 Dillon's Munic. Corp., § 618.

6. In re Wells Co. Road, 7 Ohio St. 16; Reckner v. Warner, 22 Ohio St. 275; Cairo, etc., R. Co. v. Trout, 32 Ark. 17; Bass v. Fort Wayne, 121 Ind. 389; Maxwell v. Fulton Co., 119 Ind. 20; 24 Am. & Eng. Corp. Cas. 584; Hapgood v. Doherty, 8 Gray (Mass.) 373; Flint River Steamboat Co. v. Foster, 5 Ga. 194; 48 Am. Dec. 248; Steuart v. Mayor, etc., of Baltimore, 7 Md. 500.

7. Hobbs v. Tipton Co., 103 Ind. 5758. Platter v. Elkhart Co., 103 Ind.

360.

ment may be made before it is completed, unless forbidden by statute.1

The members of the tribunal appointed to assess benefits and damages must take the proper oath before entering upon the discharge of their duties, and the failure to do so will render their report bad upon motion to quash.2 But where a party knows that a member of the tribunal has not been sworn, he must make a seasonable objection or the irregularity will be waived.3

In the absence of a statutory provision authorizing a majority of the commissioners or appraisers to hear and determine the matter, all must be present at the hearing; but it is held that a majority may make the report of the award.4

b. PARTIES.5-All persons whose rights are substantially affected by the proceedings, should be made parties, or in some manner have an opportunity to be heard. But, as a general rule, only those whose titles or interests appear of record need be made parties. Where, however, a person is in possession claiming ownership of the property, or an interest therein, he ought also to be made a party.8

1. Wood v. Comrs., 62 Ill. 391; Board of Supervisors v. Magoon, 109 Ill. 142; State v. Vanbuskirk, 21 N. J. L. 86; Goodwin v. Wethersfield, 43 Conn. 437; Polly v. Saratoga, etc., R. Co., 9 Barb. (N. Y.) 449; Ruhland v. Hazel Green, 55 Wis. 664.

2. Frith v. Inferior Court, 30 Ga. 723; Crossett v. Owens, 110 Ill. 378; Low v. Galena, etc., R. Co., 18 Ill. 324; Walters v. Houck, 7 Iowa 72; Keenan v. Comrs. Court, 26 Ala. 568; Harper v. Lexington, etc., Co., 2 Dana (Ky.) 227; Spring v. Lowell, Mass. 422; Bowler v. Drain Comrs., 47 Mich. 154; State v. Laurence, 5 N. J. L. 981; State v. Potts, 4 N. J. L. 396; State v. Northrop, 18 N. J. L. 271; Lyman v. Burlington, 22 Vt. 131; Bohlman v. Green, Bay, etc., Co., 40 Wis. 157; Cambria St., 75 Pa. St. 357.

3. Wentworth v. Farmington, 51 N. H. 128; Town v. Stoddard, 30 N. H. 23; Goodwin v. Milton, 25 N. H. 458; Roberts v. Williams, 13 Ark. 355; State v. Horn, 34 Kan. 556; Hobbs v. Tipton Co., 103 Ind. 575; Barlow v. Highway Comrs., 59 Mich. 443; In re Johnson, 49 N. J. L. 381; Henry Co. v. Harper, 38 Ill. 103; Wood v. Comrs. of Highways, 62 Ill. 391.

4. Elliott on Roads and Streets 230; Board of Water Comrs. v. Lansing, 45 N. Y. 19; Woolsey v. Tompkins, 23 Wend. (N. Y.) 324; In re Fourth Ave., 11 Abb. Pr. (N. Y.) 189; Plymouth v.

Plymouth Co., 16 Gray (Mass.) 341;
Hall v. People, 57 Ill. 307; Young v.
Buckingham, 5 Ohio 485; McLellan v.
Kennebec Co., 21 Me. 390; Van Steen-
bergh v. Bigelow, 3 Wend. (N. Y.) 42;
Ex parte Rogers, 7 Cow. (N. Y.) 526;
In re Baltimore Turnpike, 5 Binn.
(Pa.) 481.

5. See, generally, on the subject of parties, PARTIES TO ACTIONS, vol. 17, p. 470.

6. A statute which does not provide for notice or give the property-owner some reasonable opportunity to be heard is unconstitutional. Stuart v. Palmer, 74 N. Y. 190; 30 Am. Rep. 289; People v. O'Brien, 111 N. Y. i; East Kingston v. Towle, 48 N. H. 57; State v. Lindell Hotel Co., 9 Mo. App. 455; South Platte Land Co. v. Buffalo Co., 7 Neb. 256; Kuntz v. Sumption, 117 Ind. 1; 23 Am. & Eng. Corp. Cas. 531. See, also, Bennett v. Buffalo, 17 N. Y. 383; Shove v. Manitowoc, 57 Wis. 5; Philadelphia v. Miller, 49 Pa. St. 448; Harwood v. North Brookfield, 130 Mass. 561; Lehman v. Robinson, 59 Ala. 219.

7. Elliott on Roads and Streets, 2338. Anderson v. Pemberton, 89 Mo. 61; Lexington, etc., Turnpike Road Co. 7. McMurtry, 3.B. Mon. (Ky.) 516; Stonechan v. London, etc., R. Co., L. R., 7 Q. B. 1. See also Sherwood v. St. Paul, etc., R. Co., 21 Minn. 124; 11 Am. Ry. Rep. 370; Missouri, etc., R.

The statutes of the different states generally provide that all "owners" of the property affected should be made parties. This term should be so construed as to include "all who have an estate in the land, and whose interests appear of record." Where there is a vested estate, the owner should be made a party, no matter whether the estate is a present estate or one in remainder or reversion. A tenant is also generally considered as an owner, and should, therefore, be made a party.3 A trustee, and not his beneficiary, should be made a party, and the heirs of a deceased owner, and not his administrator, are the proper parties.5 Mortgagees are also necessary parties. A vendor of land, holding the legal title, is the owner, and should be made a party, notwithstanding he may, in equity, hold it for the benefit of his vendee. who has not yet obtained the legal title.

Co. v. Owen, 8 Kan. 409. This is the rule wherever the circumstances are such as to impart notice.

Rival Claimants.-The petitioners are not bound to make rival claimants parties. In such cases the money can be paid into court. See San Francisco etc., R. Co. v. Mahoney, 29 Cal. 112; Bell v. Cox, 122 Ind. 153; Wooster v. Sugar River Valley R. Co., 57 Wis. 311; 10 Am. &. Eng. R. Cas. 499; South Park Comrs. v. Todd, 112 Ill. 379.

1. Elliott on Roads and Streets, 235. 2. State v. Easton, etc., R. Co., 36 N. J. L. 181; Columbia, etc., R. Co. v. Geisse, 35 N. J. L. 558; Parks . Boston, 15 Pick. (Mass.) 198; Whitman v. Boston, etc., R. Co., 3 Allen (Mass.) 133; Enfield Toll Bridge Co. v. Hartford, etc., R. Co., 17 Conn. 454; 44 Am. Dec. 556; Shelton v. Derby, 27 Conn. 414; New Orleans, etc., R. Co. v. Frederic, 46 Miss. 1; Boonville Ormrod, 26 Mo. 193; Passmore Philadelphia R. Co., 9 Phila. (Pa.) 579; Harrisburg v. Crangle, 3 W. & S. (Pa.) 460; Colcough 7. Nashville, etc., R. Co., 2 Head (Tenn.) 171; Burbridge v. New Albany, etc., R. Co., 9 Ind. 546; Gerrard v. Omaha, etc., R. Co., 14 Neb. 270; 20 Am. & Eng. R. Cas. 423; In re Metropolitan El. R. Co. (Supreme Ct.), 12 N. Y. Supp. 506.

v.

V.

3. Brown v. Powell, 25 Pa. St. 229; Storm Lake v. Iowa Falls, etc., Co., 62 Iowa 218; Turnpike Road v. Brosi, 22 Pa. St. 29; Reed v. Hanover Branch R. Co., 105 Mass. 303; Schoff . Improvement Co., 57 N. H. 112; Baltimore, etc., R. Co. v. Thompson, 10 Md. 76; Parks v. Botson, 15 Pick. (Mass.) 198: Gilligan . Alderman, 11

R. I. 258; Astor v. Miller, 2 Paige (N.
Y.) 68; Grand Rapids, etc., Co. v.
Alley, 34 Mich. 18. Compare Bowman
v. Venice, etc., R. Co., 102 Ill. 459; 14
Am. & Eng. R. Cas. 338.

4. State v. Mayor, etc., of Orange, 32 N. J. L. 49; State v. Easton, etc., R. Co., 36 N. J. L. 181; Davis v. Charles River Branch R. Co., 11 Cush. (Mass.) 506; Hawkins v. Berkshire Co., 2 Allen (Mass.) 254.

5. Boonville v. Ormrod, 26 Mo. 193; Boynton v. Petersborough, etc., R. Co., 4 Cush. (Mass.) 467; Todemier v. Aspinwall, 43 Ill. 401; Neal v. Knox, etc., R. Co., 61 Me. 298. See, also, where the parties were described as the heirs of a certain person, deceased, Carr v. State, 103 Ind. 548. Compare State v. Blauvelt, 33 N. J. L. 36; Lull v. Curry, 10 Mich. 397.

6. Sherwood v. Lafayette, 109 Ind. 411; 58 Am. Rep. 414; Philadelphia, etc., R. Co. v. Williams, 54 Pa. St. 103; Kennedy 7. Milwaukee, etc., R. Co., 22 Wis. 581; Severin v. Cole, 38 Iowa 463; Wilson v. European, etc., R. Co., 67 Me. 358; Platt v. Bright, 29 N. J. Eq. 128; Cool v. Crommet, 13 Me. 250; In re John and Cherry Streets, 19 Wend. (N. Y.) 659. Compare Warren v. Gibson, 40 Mo. App. 469.

This is the rule even where the estate mortgaged is but a leasehold estate. Hagar v. Brainard, 44 Vt. 294; Astor v. Hoyt, 5 Wend. (N. Y.) 603. 7. Smith 7. Ferris, 6 Hun (N. Y.) 553. See also Stewart v. White, 98 Mo. 226; Bird v. Great Eastern R. Co., 34 L. J., C. P. 366; Curran v. Shattuck, 24 Cal. 427. Contra, St. Louis, etc. R. Co. v. Wilder, 17 Kan. 239.