OPINION ON REHEARING.
After the foregoing opinion was announced, the defendants and appellees by their counsel presented a petition for rehearing. Upon consideration thereof a stay of procedendo was granted, and the plaintiffs were ordered to make reply to the petition for rehearing. The entire case has been re-examined by us. We have given the case this second examination with more than ordinary readiness and freedom, because of the fact that the first opinion was prepared before the brief and argument of appellees’ counsel reached us, it having been delayed by some cause unknown. Roth the original argument and the petition for rehearing present the cause for the defendants with marked ability and manifest research.
The above opinion, as first prepared and filed, does not state the fact (it not affecting the result) that, after the action was brought against the defendant William Harris, the road supervisor, the court ordered that W. S. Martin, who was the owner of the land through which the road in controversy runs, should be made a party defendant and served with notice of the action. This was accordingly done, and Martin appeared and answered, denying the right as claimed by plaintiffs. What is said in the former opinion respecting the ownership of the land, the making of the new road, and the fencing across the old road, applies alone to the defendant Martin.
It i's said in the former opinion that no objection to the form of the action was made in the court below. Counsel now insist that although no such question was expressly made *97in the pleadings, that it nevertheless inheres in the case. We will consider it.
g _man_ damus. The proposition asserted by the defendant’s counsel is, that ma/ndamus is not the .proper action to settle a right, but only to enforce a right already settled, and the writ will not issue when the right sought to be enforced is doubtful.
The correctness of this proposition need not here be controverted, although it may well be doubted whether it applies with all its common-law force to the action of mandamus under our statute, wherein the writ of mandamus only issues after the full and final hearing of the case, and not at its commencement, as at the common law. Stevenson & Rice v. District Township, 35 Iowa, 462. But, conceding it to exist, as stated, and in all its common-law force, let us test this case by it. If the road exists as a legally established highway, it is the clear duty of the defendant Harris, as road supervisor, to remove all obstructions in it and keep it in good order for travel. Rev., §§ 880 to 905. There is no doubt as to his duty in this respect. As we have shown in our former opinion, the question as to whether the highway did still exist as such, through the land in controversy, is to be determined wholly upon the records of the county. It does not depend upon outside facts, or matters vn pais, but is a matter of law arising upon the orders of the court, which are of record and presumably known to the supervisor. Now, in view of the nature of the question and of these facts, it can hardly be said to be such a doubtful case, as would place it beyond the remedy by mandamus, even at the common law and under the rule as stated in the above proposition. In other words, it seems to us, that the term “ doubtful right ” means some other doubt than that ai'ising upon the mere construction of a judicial order, or a legal doubt as to the effect or meaning of a record.
Again, and further, it is urged that the effect of the order changing the Bloomfield and Wood’s Mill road is a matter of construction of the record itself, rather than a question of the jurisdiction of the court to make it. Suppose this to be correct. *98The order as is shown by it was based “ on the petition of W. S. Martin etal., for a change in the "Wood’s Mill and Bloomfield road.” The road is twice mentioned in the same way in the order itself, which also states that the “ change of road is established as prayed for * * * upon condition that W. S. Martin grade, bridge and improve the new road so as to make a good road over said route for travel, and paying all costs.” There is one expression in the order tending to show that the board of supervisors was unmindful at least of the fact, that there was another road upon the same line, or a part of it, when the change was ordered. That is, “ said road to be examined and approved * * * * before old road is closed.” But we cannot conclude upon the language of the whole order when taken together, that the board of supervisors intended to do more than change the Wood’s Mill and Bloomfield road. There is nothing in the order itself to generate even a doubt as to that intent; such doubt can only be made to arise upon proof aliunde, that another road had also been laid upon the same line. Upon what rule of construction can this fact be made a félo de se ?
Finally, it is urged that our holding works great injustice to the defendant Martin, for that he was at an expense of over $300, besides the value of the land around his section, where the new road is located, procured the change, and now he finds that his entire section is cut diagonally through by another road which must also be kept open, thus casting upon him the burden of two roads, while one would serve him and the public usefully. We recognize and appreciate the full force of this argument, and have been stimulated thereby to seek diligently for a legal avenue of escape from our conclusion. We can see none; and must, as before, order the judgment
Reversed.