Perrysburg journal. (Perrysburg, Wood Co., O. [Ohio]) 186?-1965, 1870-07-29


nor does the petition state In intelligible terms
what the petitioners really are asking for. On
the petition Is evidenced a formal affidavit In
which the petitioners are represented by the at
dant 10 be landowners whose lands will be as
sessed for the improvement This Is q loose
! way or establishing this important fact and Is
not the manner required by law, II seems 10 Us.
! The petition asks TUr "yiew, location and es-
tabllshment OF a new county road and not for
Improvement Of road already esta ablished =. but
the Commissioners ha We proceeded to act under
the law Of March 29f 1867 and Its amendments.
The Commissioners had no power to construct
any new road under THAT law until the amend
ment Of April 49, 1869, was presented ,-ir then
the amendment does not affect their case under
considerations, as twas not paSsua atthe fame
these proceedings we're held; hence say that
the proceedings we're without authority of law,
the petition being for the establishment Of new
road, aud not for the improvements Of any road
already established. - 81 ~ 80
The bond in this case Il Irregular, but how
are we to know that Il should be drawn accord
ing to the provisions of law. In fact if there is
any virtue in the petition, the bond should com
ply with the requirements OF the County Road
Law, and not Of the law for Improvement N
roads. IL does not comply with the former at all
and nOt with the latter in any particular; there Is
nothing 'on the. bond showing that i was a bond
filed 10 this matter; il Is mply.taken-by us 10
be The bpnd intended for road 10 because we
find i With. the papers Of that road. 1t was un.
doubtedly the understanding Of the Commissions
ers that they were esta blishing a new road as
they make their order to the township trustees
for the opening of the road as.under tie Com, non
CoHRty Road LdU. But they do nearly all their
acts under the Road Improvement Lao. 'TheZor-
der of view and survey Is not 10 accordance with
the prayer OF the petition and is not an order for
locating and establishing road, but for straight.
ening, Improving, &c. The first appointed set
OF viewers report on the necessity Of establish
inn raaH fnal lt,si.N Il -. .
duties and should not haye been accepted by the
Commissioners as report ml le under their or
der. II does not state that there is a public ne
cessity for said imnrUve vement il is in no way re-
sponsive thereto, nor does il comply with the
law. But the Commissioners not only so receive
said report but they act upon il and order ths
establishment Of the road go feet wide, and that
u be cut out and the center 20 fee' low chopped
This they certainly had no power to do under
the law of 1867, as under this law they can only
Improve, nor can they proceed under the county
road law for establishing because their findings
and orders have not been made under that law.
SO between the careless use Of both laws and
the valid use OF neither of them the road No is
fails. Up to August IA, | s69, the Commission
ers seem to have been acting under the law for
establishing, DC; but from that time and from
thence on they gnnre all their preliminary pro-
eeedings aud confne their findings and orders to
the Improvement by, &c. of the said ruad an to
the assessment to pay expens. and appropria-
tions. &c. ~
David Donaldson says that the four az roads
established BY the County Commits ssioners since
September g. 1868, were Nos Is, l6. II and 49,
Says that on road No. 16 the petition of app,i-
cants appear to confirm or to require pe1cced-
ings under the general com. road law SAYS we
surveyed the ruut laid out and eSttb sled a road
known as road No. 49, think there had never
been road laid there before. Says the Com
missoners and petitioners supposed they were
acting under ihe improved road law when acting
90 improved roai No l6. The paper ha ided me
dated July 20, 1868, is a'nntiee u landowners
that uie1, 'urreS aud aiybteRing Of road this
is road No l6. From the terms Of ! notice Ian :
owners and others would conclude that road was
already there. We did not straighten, but sur
veyed aud established new road This notice
Of sept. 20, 1868, handed me purports to be
notice to landowners, VI the improvement OF road
No. 10.
FINDING ON ROAD NO. 10. szs
The commission find from examina alton of pa :
pers aud testimony OF David Donaldson that no
legal showing is made that the viewers were not
sworn according to law before entering nn their
anueS as viewers. 1t is simply certificate Of
Mr. Donaldson that they were sworn, Saws
he thinks now that it is not established accord.
ing to law. Did not know of the COMMISSIONER
order To Township Trurtees 70 open this road.
until now. Mr. Donaldson says that part of the
proceedings on improved road Nus. 10 and 20
L,
Fl was surveyed in August, 1869.
IMPROVED ROAD NO. II.
In this road the petition does not conform ta
the requirements OF the law. 1t does not show
that five Or more landowners where laud will be
assessed for the improvement Of same on petition,
On the back Of the petit tion a man signs himself
=. ID. Stcarns certiies that the sgners of the psy
ton constitute maj,Tity Of lsudpw ners ahjon-
ing to SAID described road and living in said
/ tuty ffW nh 4
Bond in improved road No. IL is defective in
this; II does not in any particular comply with
| the statute.
We find that the order is ''to examine, xiex
and lay out or straighten the road as in theil
| opnnn public convenience and utility reojii res,
| The order states that the petitioners nsk Tor the
improvements under Act passed March 20, 1867,
as amended March 81, 1885, as follows; to inn
prove by chspping, grading and clearing, al.
though the order Of the Commissioners state This.
yet by looking at the petition itself we find tha
/ did not ask any such thing. Hence tho Com.
nlissioners order the view ers ~ do things which
the petit 'ners did not ask for.
| THE REPORT OF VIEWERS.
The viewers do not report showing the public
necessity Of the contemplated improvement, as
| required by section 4 0f the ameniatory act
There is no regular or legal evidence that the
| viewers acted under their oaths, as required by
section of the law OF 1867. The Commission
erS tini that the petitioners asked for the i'm
provement by chOpping, grading and clearing
out of said road. See Commissioners Journal
3Sl M The petition don't show this at all. In
Iact the petitioners asked for no such thing
The commissioners find that the viewers rspuft.
ed that public necessity required said improve.
men:. This is not the fact; the viewers did moi
report the public necessity VI the same, either
pro or con.
NOTICE TO LAND OWNERS ON ROAD NO. IL.
90 L.. -
It's terms with the petition. The 81 notice RI
quired by sestion Uf the act, in this case Of ap
pUlntment, as in all other cases of improved roaC
proceedings, is greatly defective, in our Judge
ment, in this particular, viz: that SEQ. o Of III,
act of March 81, 1883, requires that three free
holders shall apportion the estimsted expense o
said Improvement upon the real property em
. braced in the order and directed TO said free
holders according to the benefit to be derived
tberetrom. 1t also requires that when the re
G port OF said appurtionmeut shalt be returned, nu
tlce OF i 1.-THE apportionment) shall be published
/, &c. This notice gives the description Of III
1 land only without giving the appointment
5 How would any one know by notice as wa
, given, how much and what his land is assesscd d
Considering this notice as necessary tO Civ
. power aud jurisdiction 10 further proceeding
n with improvement, and without il they canna
, proceed legally any further, we feel eOnstraine
!, TO say II is a fatal defect.
IMPROVED ROAD NO. l6.
In this application or petition the insirumer
is defective in this: it does not show that tn
sgners are landholders whose land will be as
sessed for the improvement prayed for in the pc
! titiOn MS required by law. The petition does n,
o state the kind Of imprO vement prayed for, ask
e only for ditch four foot wide, &c, to be mad
:, straight, The order of the commissioners
viewers is not In accordance with the petition.
9 II does not appear that viewers weEef swOr
It as required by law. Mr. donaldson SAWS { n
e most Of the way on road No. Is It was throug
the woods, and thinks that it was vacated BY Ill
: seven years Limitation T. county roads n0tOper
% ed within that time after being granted by cour
;, ty commissioners. MIR. Donaldson, after exatr
ID naiOn Of Road Records, found it was granted
} 1850, and hence barred bv lapse OF time Nv SCI
r. 29 of the act regulating state and county road
= passed January 27, 1858. For this reason
d our iudgem mt, the law of 1867 aud 1873 coul
d not be applied to II in the manner the cOnm,
'r sioners seem to have done. They undertook
c, improve that which did not itself have any e,
ID istence, In fact. .tt
3 We find on the presentation Of the petition
&c the commissioners, aud after their cOnsiderin
5. the same, they appointed W. V. Way, 7.