Various reasons have been assigned why the return of the Surveyors should be set aside in this case, and that this court should correct the errors of the Common Pieasj which I will consider in the order presented. The
First reason urged is that the application to the court for the appointment of Surveyors, is insufficient and defective, as it does not name the owner of the land, where tic road is to begin.— It is not necessary that it should. All that the law requires, is that the beginning and end and general course of the contemplated road, should be described in the petition with so much ■precision and certainty, as to leave no doubt as to the intent of the applicants. The petition in the present case, describes the beginning point as follows, to wit : “to begin on the top of thg first mountain in the township of Warren, at the forks of the road near John Limbcrgcr’s house, and southerly of said house.'’ No greater degree of certainty would havofficcu given to the description, if the owner of the land had been named. The
Second and third reasons assigned are, that the affidavit annexed to the notice of the application, is insufficient, and that there was no proof before the court, that the applicants were-Freeholders and residents in the county. On inspecting the affidavit endorsed on the notice, and sworn to in open court, it appears that the notices were put up according to law, and that the persons who signed them, were both residents and freeholders in the county ; and by reference to the petition, it also appears that the applicants are the same persons who signed the *370notice. The law requires that due proof be made before tire* court, that (lie notices or advertisements of the application,have been put up, and that the judgment of the court,upon such proof,. shall be conclusive and final. The court by their order of appointment here, have declared that judgment, and the proof was-sufficient to warrant (he decision. It is urged in the
Fourth place, that there was no [¡roof before the Surveyors,that the time and place of their meeting had been advertised according to law, The return certifies that due proof was made before them, that the same was legally advertised. This return is not impeached by any evidence before this court; a mutilated paper -•'is exhibited, purporting to be a copy of the order of the appointment of the Surveyors, and signed by some eight or ten of the applicants, and’ proved to have been picked up at one of the places where a notice was said to have been put- up. And it is further proved, that this paper is in all respects like the one produced before the surveyors, as the- copy of the advertisement of their meeting. But admitting this to be the form of the notice,, that was used, it was sufficient to answer the requirement of (head : it was in substance if not in form, all that was necessary. It specifies the time and place, and purpose of meeting, according to the direction of the court, and is signed by at least two of the applicants. The object is,public notice of the meeting of the surveyors, and no form of such notice is prescribed. The surveyors deemed this sufficient, and I cannot say they were wrong. The
Fifth reason assigned for setting aside this order, is that the surveyors have not laid out the rdad as applied for, and have laid it through part of a dwelling house. We have no evidence before its, showing that the road returned, \ aries from the one described in the petition. 2n regard to its running through a dwelling house, it is indeed proved by the affidavit of C. C Brokaw, that the dwelling house of William Tucker, stands six and a half feet on the road as-laid out; but he further states in his affidavit, that the appointment of the surveyors, was made before tin's house was built or commenced, and that when the road was laid out, the masons were at work on the foundation. This reason therefore is not verified, as the road did not take part- of a d-vvel*371ling house, but the house afterwards erected, encroached upon part of the road.
The last objection insisted by counsel, is that the Court of Common Pleas erred,in refusing to appoint freeholders to review the proceedings of the surveyors.
The return of the surveyors is dated the 14th of June, 1837, and filed with the clerk on the 16th of the same month. Outlie 28th day of June, Jacob Degrool filed his caveat against recording said return. To a rule obtained from this court, the clerk of Somerset certifies and returns, that the June term of the court of Common Pleas of that county, closed on the same day that the caveat was filed, and that the court had adjourned before the filing thereof. The application for the appointment of freeholders, was made by the caveator at the October term, being tiie next succeeding term of that court.
The statute provides that the return of the surveyors, shall not be recorded until the expiration of fifteen days from the time it shall be received by the clerk, so that any person being aggrieved, may within that time enter a caveat which shall operate as a supersedeas to further proceedings, until the next court— and that such person having entered a caveat as aforesaid, may make application in writing to the court of Common Pleas succeeding, and the said court shall, during the term in which said application is made, appoint six of the chosen freeholders to review, &c. By the next succeeding term, is clearly to be understood the term next after the filing of the caveat. Jacob Begroot therefore, having filed his caveat within the time limited „by law, and having made his request for the appointment of freeholders at the next succeeding term of the court, the court was bound by law to make the order of appointment; and in refusing to do so, committed an error which it is the duty of this court to correct.
For this cause, I am of opinion that the matter be remanded to the court of Common Picas, to be proceeded in according to law.