Dwiggins v. Denver ( 1874 )

Bv the Court.

The notice required by the 5th section of the act in relation to the opening, etc., of public roads, passed January 27, 1853 (S. & C. 1291), to be given by the principal petitioner to the owner or owners of land through which the road is proposed to be laid out or altered, should be given to husband and wife in a case where the title to the land sought to be appropriated is vested in the wife. By section 2 of the amendatory act of April 8,1866, the husband, in such case, has the right to take an appeal; from which, he appears to be a necessary party in such proceeding.

2. Where the board of commissioners, acting under the direction of section 7 of said act, are of opinion that the-proposed road or alteration is not of sufficient importance to justify the payment of damages by the county, it is error to make a final order establishing the same, until the damages shall have been paid by the petitioners, or otherwise secured, to the satisfaction of the claimants.

3. Where, in such case, the board “ grants the road upon the following conditions, to wit: . . . The board therefore orders that the petitioners pay, or cause to be paid, to-the claimants,” the amount assessed for the damages and compensation, “ and tbe order will be issued to-the trustees of tbe proper townships (per auditor) after twenty days, for the opening of the road,” such action of the board is a final order establishing the road.

Leave refused.