delivered the opinion of the Court.
The second section of the act of December, 1821, “to reduce into one, the several acts concerning roads, &c.,” a provides, “that in those places where it is necessary to purchase timber to repair or causeway roads, the overseer of such road is hereby authorized, to contract for such timber as will be necessary to repair such road; and when timber cannot be had near a road, where it may be wanting, the overseer may contract for hauling the same, which contract shall be laid before the count}’ judge and commissioners of roads and revenue, who are hereby authorized and required to orderpayment to betnade for as much as they shall judge reasonable out of the county treasury.”
Here then, the law provides the means by which overseers of roads may discharge their duties to the public, without encroaching on the rights of the citizen. This statute, by providing that the overseer shall contran for such timber as may be necessary to repair the road, clearly recognizes the entire right of property, and virtually prohibits taking the timber witho ut such contract, nor will it do to say that these provisions weie intended, only for cases where the timber is inconvenient, and on the land of another than him through whose land the road passes. W e cannot conceive why an overseer should have a greater right to use the timber growing on the land through which the road x’uns, than that of other land. True, it would generally be the most convenient, but the law pro*36vides, that when it cannot be had near a road, where it may be necessary, the overseer may contract for hauling it. This means, where the timber cannot be had by contract in the manner prescribed by the act, by gift or otherwise, consistently wilh the rights of property, and by no means implies that the overseer may take the timber which is convenient to the road, without the owner’s consent.
We are therefore of opinion, that the Circuit Court erred in overruling the demurrer to the second plea of the defendant, and that the judgement must be reversed, and the cause remanded.
Judge Saffold not sitting.L.uvs A];1.4Ul-