#### *The Commissioners of Highways of Sherburne *vs.*The Judges of Chenango.

On appeal from a determination of *commissioners of highways*refusing to lay a road through improved lands, the judges to whom the appeal is made have not the power to *reverse in part,*and proceed and lay out a portion of the road applied for, or to *affirm in*part, and refuse to lay out the residue of such road; they must either affirm or reverse *in toto.*

The 90th section of the statute specifying the requisites of an appeal, as to whether it be brought to reverse *in whole*or *in part,*applies only to cases wl\ere roads are laid out without the intervention of freeholders.

Highways. This case arises on a *certiorari*directed to three of the judges of the county of Chenango, to review their doings, on an appeal made to them from the determination of the commissioners of highways of Sherburne, in respect to the laying out of a road. Application was made to the commissioners to lay out a road, and twelve freeholders were assembled and certified that the highway1 applied for was necessary and proper to be laid out. In their *certificate*the proposed road was described as commencing at a turnpike road running east and west through the village of Sherburne, and running thence *northwardly*along the west line of a lot in the possession of one Walter H. Saxton, to a certain point (particularly described,) and thence *westwardly*to a road (called *Ohureh-street,)*running from the turnpike road before mentioned to the Episcopal church in the village, (the proposed road forming a right angle, with sides of about equal length.) The commissioners *refused*to lay out the road, and the applicant *appealed*to three of the judges, who *reversed*the determination of the commissioners *as to that part*of the proposed road running *westwardly*from the *point*described in the certificate of the freeholders as the termination of the first course ; and *affirmed*their determination *as to that part*of the proposed road running *northwardly*from the turnpike road to the point above mentioned ; and after thus *affirming*the doings of the commissioners in part, and *reversing*them in part, the judges proceeded and laid out a road of three rods wide from the termination of the first [ *454 ] *course of the road applied for to the road called Church-street. The above facts appeared in the return to the certiorari.

J. *Benedict,*for the relators,

contended that the judges had not the power to *affirm in part*and *reverse in part;*that it was their duty either to *affirm*the doings of the commissioners by refusing to lay out the road applied for, or to *reverse*them by laying out the road which the freeholders had certified to be necessary.

*347
      *M. T. Reynolds,*contra.

*By the Court,*

Helsos, C. J.

The only question in this case is, whether the judges can, on appeal, reverse *in part*and affirm *in part*the determination of the commissioners of highways in refusing to lay out a road.

I am of opinion they cannot, where the road in contemplation passes through improved lands, and as to the necessity for which the certificate of twelve freeholders is required. In that case the person applying'is required to post notices in three public places of the town, specifying, as near as may be, the route, the several tracts of land through which the road is to pass, and the time when the freeholders will meet. 1 *R. S.*511 § 63. The freeholders are to examine the proposed route, &c., and certify, under oath, in regard to its necessity ; and the commissioners can only lay out a road *“ so applied for and,*certified,” § 66, 67. On an appeal to the judges, they may affirm or reverse ; and if they reverse, in case of the refusal of the commissioners to lay out the road, they “ shall proceed in the same manner in which commissioners of highways are directed to proceed in like cases,” *(Id.*515, § 88, 94, 95,) and lay out the road “ applied for.”

The statute contemplates the judgment of three distinct bodies of men, if desired by the party interested, before the proposed road can be established : 1—the freeholders; 2—the commissioners of highways; and 3—the judges. And two of these bodies must concur in laying out. The certificate of the freeholders is indispensable, and it seems to me clear, the commissioners are confined to the *termini*of the route *thus [ *455 j certified by the freeholders. Indeed, if it be not so, the preliminary proceedings of the freeholders are of little importance, as the fact that they have recommended a given route as necessary for the public convenience, affords no ground for the presumption that they would have certified to a part of it; the same remark is equally applicable to the judges. To give any efficient force to the action of the freeholders, the power of the commissioners and judges in the matter must be limited to the line as recommended. The statute accords with this view. The commissioners may lay out the highway so *applied for and certified ;*(or refuse to do so ;) and on appeal the judges *may lay out the road so applied for, p.*515, § 95, obviously referring to the route originally proposed and recommended by the freeholders.

The only doubt upon the statute, arises out of the words of the 90th section 515, which provides that the appeal to the judges shall be in writing, that it shall briefly state the grounds of it, and whether it is brought to reverse the *whole*or only *a part*of the determination of the commissioners; and that in the latter case it shall specify what part. This provision is new, and it appears to me must have been introduced without due regard to the *348general system of laying out roads through improved lands, or to the obvious import of other sections of the law. These we have seen expressly limit the action of the commissioners and judges to the route certified by the freeholders. Effect, however, may be given to the section consistent with our view of the law, by confining it to cases where roads are laid out without the intervention of freeholders in the manner prescribed by the statute. 1 *R. S.*510, § 58, 59, 600. I think we are bound so to limit it.

Proceedings reversed.