By the Court, The question about the orchard goes to the jurisdiction of the commissioners and judges. They cannot lay out a road through an orchard of the growth of four years or more, without the *361consent of the owner. 1 B. S. 514, § 57. Bat I am satisfied upon the evidence .returned that the road was not laid out through an orchard. The two apple trees which stood in the lane had formerly belonged to the orchard, but they had been separated from it by a fence for several years. The two trees stood in an open lane contiguous to the public highway ; they had not been trimmed, and no care had been taken of them for a longtime ; one of the trees was dead, and the other nearly so, and in the opinion of the witnessess would never bear fruit again. The lane in which the trees stood had long been a common passage way from the public road to a [ *862 ] saw mill and was used at pleasure by the customers of *the mill owner, with the consent of the proprietor of the land. It is too much to say, that this lane, over which the highway was laid out, was an orchard within the meaning of the statute. The road as laid out passes over the circular corner of a lot or field in which there is an orchard, including in the road a piece of ground about fifty feet long, and at its greatest breadth about eight feet; but no apple tree in the orchard is situate near the road. It may be conceded that the road could not be laid out in such a manner as to deprive the owner, either in whole or in part, of the beneficial enjoyment of his fruit trees. But we are, in effect, asked to go further, and say, that a road cannot be laid over an enclosed field, if there are fruit trees in any part of it, however distant they may be from the highway. To this doctrine I cannot subscribe. It does not follow that the whole field is an orchard because there are fruit trees in some part of it. The return is that, there is no apple tree near the road, and we cannot presume, for the purpose of ousting the judges of jurisdiction, that any tree was so near as to be injured by laying out and opening the road. It was incumbent on the relators to show affirmatively that the judges exceeded their powers. It is no answer to say, that the return is evasive. If it does not state the case fully, the relators should have applied for a further return.
The evidence which was offered and rejected, did not go to the jurisdiction of the judges, and whether they were right or wrong, I do not see how we can review their decision upon this common law certiorari. Our supervisory power over inferior tribunals, by means of this writ, except in cases where special provisions have been made by the legislature, only extends to questions touching the jurisdiction of the subordinate tribunal, and the regularity of its proceedings. If they neither exceed their powers, nor depart from the forms prescribed to them by law, their decision upon the merits of any controversy before them is final and conclusive. Birdsall v. Phillips, 17 Wendell, 464. Prindle v. Anderson, 19 Wendell, 391.
But I feel no difficulty in this case in saying that the judges [ *363 ] decided properly. 'The written application was *sufficiently specific, in giving the termini and general route of the proposed road.
It was necessary for the applicant to specify courses and distances. 1 B. *363S. 514 § 59. That was the business of the commissioners, or judges, if they concluded to lay out the road. § 63, 91. The judges were sitting in review upon the decision of the conniiissioners. They had before them the application for the road, the certificate of the freeholders, and the decision of the commissioners l’efusing to lay it out — all in writing, and spécifying with reasonable certainty the general route of the road. The jury had certified that a road between certain specifiedi points was necessary and proper —leaving the. particular route, as it was- their duty to do, to the decision of those whose business it was to lay out the road. The commissioners had decided, in effect, that no road, on any route, between those points should be laid out. Upon that decision the judges were sitting in review, and it was a matter of no moment what particular route either the jury or the commissioners had examined.
Proceedings affirmed.