State v. Nash , 23 Vroom 127 ( 1889 )

The opinion of the court was delivered by

Garrison, J.

The order of the justices and surveyors brought before us by this certiorari is erroneous, and must be set aside. In many of its aspects the determination of these officials resembles that before this court in Christie v. Vanderburgh, 17 Vroom 280, and is obnoxious for the reasons there given. Even if this were not the case, this order would have to be quashed, because of the manifest illegality of the method pursued in widening the road in front of the prosecutor’s lands. After having determined that the highway had been narrowed, the officials certify that they are in doubt, not as to which of the-adjacent owners have encroached on the same, but whether any of them have done so.

In the face of this negative finding, they proceed to fix upon a centre line, and determine that a road should be opened on each side thereof to a distance of thirty-three feet. For the details and practical application of this general adjudication, they refer to an annexed map, which is made part of their report. An examination of the map thus indicated, shows that upon the part of road to which the prosecutor’s lands are adjacent, the widening is proposed to be accomplished by taking a narrow strip off the land of the opposite owner, while a broader and gradually broadening line marks the portion of prosecutor’s lands which is to be opened to the public. In view of the negative finding of the officials upon the question of prosecutor’s encroachment, such an unequal appropriation is hostile to the entire legislative scheme under which these proceedings are had.

The order should be quashed, with costs.