#### JOHN WELCH *vs.*WILLIAM W. PIERCY & AL.

The County Court has full power to *order*the laying out of public roads ; but none to *lay them out.*The last power is given to a jury.

The Court has the power to decide, whether the public convenience requires the laying out of a road, and to order a jury for the purpose of laying it out; but it has no power, except as to the *termini,*to direct the jury or any one else, *how*it shall run, that being the exclusive province of the jury, their verdict being of course subject to the judgment of the Court, whether it shall be received or not.

Air order of the Court directing how a road shall be run and opened does not justify an overseer, who acts under it, and he is liable to an action by the party grieved.

Every man is presumed, in law, to intend any consequence, which naturally flows from an unlawful act, and is answerable to private individuals for any injury so sustained. '

Therefore the defendant was liable, in an action of trespass *qúare clausum fregit,*for the loss of hogs, &c. occasioned by the unlawful breaking down, of the plaintiff’s fence.

The cases of *State*v. *Marble,*4 Ire. 321, and *Baker*v. *Wilson,*3 Ire. 170, cited and approved.

Appeal from the Superior Court of Law of Cherokee County, at the Spring Term, 1846, his Honor Judge Peakson presiding.

This is an action of trespass *quare*clausumfregit,brought to recover damages, for throwing down the fences of the plaintiff, whereby he lost several hogs and other property. The defendant pleaded in justification, that he was appointed by the County Court of Cherokee County, to open a public road, at the place where the fences were thrown down. He produced in evidence the record of the County Court, whereby it appeared, that, at June Term, 1840, a petition was filed, wherein it is stated “ that it will be of great convenience to the neighborhood, that a public road be esta'uushed, leaving the State road at or near Joel Vannoy’s, valley river, passing by Andrew Colvert’s, W. W. Pit rcy’s, and to intersect the State Road at or near James‘Sing's.” At June Term 1840, an order was made *368by the Court, directing the Sheriff “to summon a jury to view, mark and lay offa road from Thomas G. Forney’s line passing Andrew Calvert’s, and William W. Piercy’s and intersect the State road at James King’s.” The jury was duly summoned, and their return is as follows : “ The

jury met according to the order, and agree that the road be made.” They then recommend that the defendant, Piercy, be appointed the overseer, with the hands within certain designated boundaries. The order of the Court, appointing Piercyfoverseer, is as follows : “Ordered by the Court, that William W. Pearcy be overseer of the road, leading from James King’s, down the South side of valley river, crossing the said river at Joel Vannoy’s to the Hanks branch, and that he command all the hands on the South side of the said river, a due South course from these points, &c.” It then directs the overseer “ to work out the same, &c.” Acting under this order, the defendant, in opening the road, committed the trespass complained of. It was admitted by the defendant’s counsel, that he had failed in proving, that the road had been laid off by the jury, along the place, where the alleged trespass was committed; and he moved the Court to instruct the jury, that, as the road had not been laid off and marked by the jury at any place, the defendant was justified, under his order, in opening out the road, along the nearest and best route between the points mentioned in his order. This instruction was refused, and under the charge of the Judge, a verdict was returned for the plaintiff, in their damages the injury sustained by the loss of the hogs and other articles. From the judgment on this verdict the defendant appealed.

*Francis*and *Edney,*for the plaintiff 1st. That the County Court had no power to make the ordejj under which the defendant acted. 2ndly. That one writ lies for several trespasses. *Fitz. Nat Brev. title Trespass*196, 198,201. *Finer*38,39, *Co, Rep, pt. page*173.'^'3rdly. *369Any consequential damages may be laid in aggravation. *Anderson*v. *Bricltton,*Strange 192. *Burnett*v. *Alcott,*2 Term 166 166, *Taylor*v. *Cole,*3 Term 292, *Bulléis N. P.*82. *Lears*v. *Lyons,*3 Eng. Cow. L. Rep. 362.

*Gaither,*for the defendant.

Nash, J.

The defendant asks for a new trial, because of the refusal of the Judge to instruct the jury as required, and because he charged them, that they might give damages for the loss of the hogs and other property, if they thought it resulted from the pulling down of the fences. We entii-ely agree with his Honor on both points; and very much for the reasons assigned by him. The County Court of each County is vested with “ full power and authority to *order*the laying out of public roads,” but none whatever to *to lay them, out.*That authority is given to another tribunal, that is. a jury. By the 2nd section of the Act of 1784, *Rev. Stat. ch.*104, sec. 4, it is ordained that “all roads shall be laid out by a jury of freeholders, to the greatest advantage of the inhabitants, and as little as may be to the injury of inclosures.” And to secure a faithful discharge of their duty, the jury make their return on oath. The Court, then, have the power to decide whether the public convenience requires the laying out of the road, and to order a jury to be summoned to lay it out; but they have no power, except as to the *termini, to*direct the jury or any one else *hoio*it shall run, that being the exclusive right of the jury ; their verdict being, of course, subject to the judgment of the Court, whether it shall be received or not. It has been urged before us, that, as the defendant was acting under an order of a Court of competent jurisdiction, he could not be a trespasser, as the order was not void but only voidable. If this were the fact, the argument would be sound; but the order is not voidable alone, it is absolutely void, both for uncertainty and want of power in the Court to *370make it. It is obvious, from an inspection of the record, that the jury did not lay off any road. They neither marked nor staked it, nor designated in the report the course it should run ; and, until they had so done, the Court had no power to order it to be opened, for there is no road to be opened. All that the overseer can do, is to carry into execution the determination of the jury. If the Court direct him to vary from the location made by them or to open a road vrithout their previous action, fixing where it shall run, their order is null and void and does not protect him. To hold that an order, such as was made in this case, would protect the overseer, is at once to place, at the irresponsible discretion of the County Court and of the overseer, the inclosed *premises of every*individual. The Court would not be answerable, because, if valid, it would be a judicial act, and the officer would be irresponsible, because acting under a warrant from a competent tribunal. Rut the question has been already partially'decided in the case *The State*v. *Marble,*4 Ire. 321, and in that of *Balter*v. *Wilson,*3 Ire. 170. In the latter, the-plaintiff was appointed an overseer of a road, that-had no existence, in law or in fact, and the action was brought, to recover from the defendant, one of the hands assigned to the plaintiff, the penalty for not working on it. On behalf of the plaintiff it was contended, that the order was a judicial determination that there was such a road. • The Court decided that it was not; that so to hold, would be to repe'al the Act of the Legislature on the subject. In this case, the road, ordered by the Court to be opened by the overseer, had no existence in law or in fact. If, instead of suing the defendant for a trespass, the plaintiff had put up his fences again, could an indictment have been maintained against him for obstructing a public road ? Surely not, for the plaintiff was the owner of the land. If it could, the singular spectacle would have been exhibited, of two antagonistic rights, existing in different persons .at the same time — the right *371of the overseer to throw down the fences, and the right of the owner to put them up. This cannot be so. If the order justified the overseer, then he had in law a right to do what he did, and it would have been criminal in the plaintiff to have opposed or prevented him, or to have obstructed the road after it was opened. But, again, if the County Court had the power to make the order, it was the duty of the overseer to obey it, and, if he did not, he would be punishable by indictment, but the case of *Balter*v. *Wilson,*decides that he could not be punished. The instruction prayed for could not have been given, without a manifest and palpable violation of the Act of Assembly. It is admitted, that if the jury had laid out a road, the defendant had departed from it, in pulling down the fences, and'his justification is claimed under the order, on the plea that he had chosen the best and most convenient ground, on which to run it between the points designated by the Court. This defence substitutes the overseer for the jury, and transfers from the latter to the former a discretion, which the law no where authorizes. It violates one of the most important provisions of the road law, the protection which it throws around the pro* perty of every citizen. It never was the will of the Legislature, that any man’s property .should be taken, for the use of the public, without compensation. And the law we are considering so said, and appointed a tribunal to assess the damage each individual may sustain by running the road on his land — not the Court nor the overseer — ■ but a jury of his country. This case remarkably ex-emplies the danger of departing from the provisions of the Act. Two individuals, on whose land the jury intended the road should run, are allowed trifling compensation, for the injury was small; while the present plaintiff, through whose valuable low grounds and inclosures the overseer has chosen to run it for a quarter of a mile, is allowed nothing.

*372Upon the return of the jury, it was. the duty of the County Court to have set aside their verdict, because they had not performed the duty assigned them, and to have ordered another jury to go upon the ground. They had no right nor power to substitute themselves or the defendant in the place of a jury.

We entirely concur with his Honor, that the County Court had no power to make the order they did, nor had they the power to authorize any man to cut out a road at his discretion; and that the defendant was not justified by it in pulling down the fences of the plaintiff.

We agree with the Court below on the question of damages. Every man, in law, is presumed to intend any consequence, which naturally flows from an unlawful; act, and is answerable to private individuals for any injury, so sustained. The authorities cited at the bar, so far as we had it in* our power to examine them, sustain the proposition. The question was very ©orrectly left to-the jury, to. say whether the loss of the hogs and other property was the consequence of th® pulling down of the* fences, and they said that it was,

Ree Cueiam,. Judgment affirmed.