I am of opinion that this judgment ought to be reversed. It is not denied that the road, as laid out by the commissioners and affirmed by the referees, corresponded with the one indicated by the prior proceedings. In the order of the commissioners the courses and distances are given until we come to a point described as "the portions of the old road." From thence it proceeds thus: "Thence on said old road" a certain course and distance over lands of two individuals named. The remaining courses and distances are understood to correspond with the old road, and it is added in the order, "the said portions of the highway to be two rods wide." The alleged illegality is confined to a point in the distance in which the road, as laid-out, runs over the old road. It is found that this old road has been used as a public highway for twenty years. It was very narrow, it is true, and could not be conveniently wider at one point except on the east side; and in widening it in that direction it would encroach on the plaintiff's orchard, which the law forbids. It would be inconvenient (not impossible) to widen it on the west side, on account of a side hill. Now it may be that different proceedings would be required to widen the old road so as to make it two rods wide. If this be so, then that part of the order which requires that the old highway should be two rods wide is void; and the question then is, whether the whole road, as laid out, is illegal in consequence of the order adopting the old road for a part of the distance. I do not think the law requires this result. If the old road had been used as a highway twenty years, it could be so used some time longer. Whether in consequence of the difficulty of going along at the narrower part indicated, the project of a road which was applied for should be given up or not, was a question for the discretion of the commissioners, and they elected to lay out the road notwithstanding the difficulty. It may be that the public interest would be promoted by laying out a three rod road until the old road should be reached and then continue the use of the *Page 481 old road to the other terminus. Of that the commissioners, not the court, were to judge. But if the order for widening the old road was valid, it does not follow that the orchard was to be intruded upon. Of course it was possible to dig down the side hill on the other side. How difficult it would be we do not know, but perhaps the commissioners did. But we should not declare the whole proceeding void, and make these public officers trespassers, on account of some inconvenience in carrying out their determination.
I have been obliged to examine the case without the benefit of the diagram, no copy of which was furnished to me. The witnesses, however, have sufficiently indicated the local particulars necessary to be considered.
All the judges, except WRIGHT, J. concurring,
Judgment reversed.