It is not denied, that the supervisors to whom the appeal was taken, had at their first meeting, jurisdiction to hear and determine the appeal. But it is urged, that when they met at the proper time, and dismissed the appeal, and adjourned without day, their jurisdiction over the case was ended, and any subsequent action in the case-was unauthorized and void. The 9th section, art. 24, chapter, “ Counties,” (Scates’ Oomp. 354), provides that every appeal from an order of the commissioners of highways, shall be in writing, addressed to the three supervisors, to whom the appeal is taken, and signed .by the party appealing;- that it shall state the grounds of the appeal; and that the appeal shall be left with one of the three supervisors, by the person appealing, and that such person shall also leave a notice of the appeal, with each of the other supervisors, to whom the appeal is taken. The tenth section imposes the duty upon the supervisors to whom the appeal is taken, as soon as may be convenient, after the expiration of thirty dáys from the time of filing the order in the office of the town clerk, to fix upon a time and place to consider the same. The eleventh section requires the person appealing to cause a notice in writing, of the time and place so agreed upon for the hearing of the appeal, to be served upon the commissioners of highways, from whose order the appeal is taken, and also upon at least three of the petitioners for the road, which is required to be served at least eight days before the time set for the hearing; and likewise provides for the manner of serving the notices. The twelfth section provides the mode of trying the appeal, and that they may adjourn from time to time, as it may become necessary. It would seem from these provisions, that the legislature had guarded the rights of the parties in interest with scrupulous care, so as to give them such a notice as would enable them to be heard, before their rights should be affected by the determination of the appeal. And this is so eminently just and reasonable, that it cannot be supposed the legislature could have intended otherwise. It is one of the great fundamental principles of all law, that a party whose rights are to be affected, by judicial determination, or by the action of special tribunals, shall have a notice of the proceeding and an opportunity of being heard. When the commissioners met to determine this appeal, their right to act, depended upon the observance of the preliminary requirements of the statute, one of which was, the service of the notices to the persons designated by the statute. When they made their order dismissing the appeal, and adjourned, without a further intention of again meeting for the consideration of the case, the proceeding was then at an end. They could not at a future time meet, and act on the appeal, unless the time and place of meeting were again agreed upon, and the notices were again served on the commissioners of highways, and the same three petitioners who were before served. When they met and acted without the service of such notices, it was precisely as if they had, upon the tiling of the appeal, proceeded without agreeing upon a time for the hearing, and without the service of the notices required by the law. At this second meeting, the persons having a right to such notice were not present, had not received a notice, and were deprived of all right to be heard, and for the want of such notices they were unauthorized to act, and the order then made was inoperative and void.
The twenty-first section of the same article provides, that when a road is located on the line dividing two towns, the commissioners of such towns shall divide it into two or more road districts, in a manner that shall make the labor and expense of opening, working and keeping it in repair through each of the districts, equal, as near as may be, and to allot an equal number of such districts to each town. The twenty-second section declares that each district shall be considered as wholly belonging to the town to which it shall be allotted, for the purpose of opening and improving the road, and keeping it in repair, and that the commissioners shall cause such highway, and the partition and allotment of the same, to be recorded in the office of the town clerks of each of their respective towns.
Under these provisions, neither of the commissioners of highways, for the town of Medina or Radnor, became invested with power to open or improve any portion of this road, until the allotment required by the statute was made. It is such allotment that gives the right to the commissioners to act. It is that division, which gives to each town a portion of the road, and, until that is done, the road, or any portion of it, is not within any district belonging to their town, and is not under their control. They can have no right to open roads in other towns, or roads not belonging to their own. No such allotment of this road was ever made, and the town of Radnor consequently had no right to give the notice requiring the opening of this road, nor was the plaintiff in error bound to obey it, nor did he subject himself to a prosecution for refusing to open a road having no existence, or for replacing his fence at the place the road was alleged to have been obstructed. The court below therefore erred in refusing to give the second, third and fourth instructions asked by defendant below.
The judgment of the court below must therefore be reversed and the cause remanded.
Judgment reversed.