Majority
p. 424Kelley against Horton and Smith.
Headnote
Tho’ a road be laid out, the highways h'as openltfby removing fences, without an order from the commissioners, of them.Nor have open aabroad which they have laid out, or direct it to removing^fen^ ces, until- after 60 days notice to the owner, fence™”76 h'S
And if fen Td, t™ open^a road newly laid out, without such notice, ail persons concerned therein are
On certiorari to a Justice’s Court. The action was trespass fn the Court below, by Kelly against Horton & Smith, for pulling down the plaintiff’s fence. Smith, as overseer of highways, and Horton, as coming in his aid, justified this, and proved by a witness, that he heard the plaintiff tell • ' Smith, the overseer, that the former would open his fence when the latter wished to work the road. Verdict and iudgnjent for the defendants.
G. Lawrence, for the plaintiff in error.
H. Baldwin, contra,
The testimony of the witness who heard the plaintiff tell the overseer that he would open his fence, when , , . the latter wished to work the road, seems to admit that a roaci had been laid there; hut by the 39th section of the act to regulate highways, (2 R. L. 283,) the plaintiff was entitled to 60 days notice from the commissioners, or a majority of them, to remove his fences : and the overseer had no right , ... , . , . to open the road without their orders. The verdict is against ^aw an¿ evidence.
T 1 Judgment reversed.