This case is sufficiently stated in the opinion of the Court, which was delivered by
Parris J.This is a'certiorari requiring the CÓunty Commissioners to certify the proceedings of the late Court of Sessions for this county, laying out a road, on the application of the respondent and others, over certain unincorporated townships.
On examining the record it appears that the road, as prayed for, was to pass over part of a township owned by Joseph Whitney, Esq., and that the said Whitney was a member of the Court of Sessions, and was present at the adjudication by said Court, that the road was of common convenience and necessity, and at the appointment of a committee to lay out the same.
It also appears that the road was laid three hundred and twenty-six rods on said Whitney’s land, and that he was a member of said Court, and acting as such, when the return of the Committee was accepted; — that objections wore offered to its acceptance, which w.ere overruled by the Court. It is said that Mr. Whitney took no part in these proceedings, and that the adjudication and acceptance were ordered by the other members of the Court. If so, tho record does not speak the truth. We are, however, bound to consider that as evidence of the proceedings in the case; — and, upon such evidence, we have no doubt of the irregularity of the proceedings.
It further appears that Asa A. Pond was a petitioner for the road, and that he was appointed and acted as one of the committee of three to lay it out. The statute requires the committee to *474be disinterested freeholders. Much is confided to the judgment of such a committee. They are to estimate damages, and frequently have discretionary power as to the particular direction and location of the road. They are to have regard, not only to the public convenience, but to the interest and convenience of those over whose land the road is laid. — Private property is to be' taken for public use; —individual rights are to be encroached upon; and we cannot believe that it was intended to require of the citizen to submit the question whether his property shall be thus taken, and also the question of damages to the decision of those who have petitioned for the road.
Hobbs, for the State. It. K. Porter, for the respondents.The proceedings must be quashed.