Brannan v. Mecklenburg

By the Court : The viewers are required “ to view the proposed location * * * and decide whether such proposed location * * * is required for public convenience.” (Sec. 5.) “ If, in the opinion of the road viewers, * * * the location is necessary to the public convenience,” they are to cause a survey of the proposed location to be made, etc. (Id.) It is clear that the statute intended that the mind of the petitioners upon the one hand, and of the viewers upon the other, should concur in respect to the propriety of the proposed location of the road—the entire road—mentioned and proposed to be established by the petition, and that, unless there be this concurrence of views between the petitioners and viewers, the Board.should have no authority to proceed further upon the petition. In this case the petitioners and the viewers differed as to the propriety of establishing that portion of the road lying beyond Baiseley’s. If the report in this respect is followed, as it was attempted by the Board in this instance, the result might be the ex parte establishment of a road, for the opening of which no resident tax-payers could be found to sign a petition in the first instance.

Judgment reversed and cause remanded, with direction to overrule the demurrer to the complaint.