On Petition for Rehearing.
Roby, J.The issue tried was not whether the highway itself was of public utility, but whether the proposed change in "it was of such utility. The jury having found against the utility of the proposed change were.not called upon to assess damages. The cost and damages incident to the change were, however, directly pertinent to the issue tried. The damage to adjacent landowners was not only a relevant fact, but one very largely controlling. The amount of land necessary to be appropriated, the character of the improvements affected thereby, and the extent of the injury done to them, were all involved in the inquiry made. A photograph of a dwelling-house, in front of which the strip proposed to be taken lay, was introduced in evidence. The view taken from across the road did not show the distance that the house stood from the present highway. It was material to show, not only the width of the strip taken and its proximity to the dwelling referred to, but also the character of the improvement thereby affected. For this purpose the photograph was admissible. The propositions relied upon in the petition for a rehearing are not therefore sufficient.
Petition for rehearing overruled.