Winchester v. County Commissioners

Robinson, O. J,, delivered the opinion of tbe Court. This case was fully argued, but the question is one, it seems, in regard to which there cannot be any difficulty. Tiie Code confers upon the County Commissioners of the several counties the power to open, to change, and to close the public roads, and prescribes the mode and manner in which this power is to be exercised. In the first place, it provides that persons intending to make application to open, change, or close a public road, shall give thirty days’ notice of such intention in one of the newspapers published in the county; and upon giving such, notice the County Commissioners may, if they deem it expedient, appoint three examiners to meet upon the premises, and to examine and determine whether the public convenience requires the road to be opened, changed, or closed, as the case may be.

And they are to report the result of their examination, together with the reasons on which their judgment is based, and the damages awarded to each owner through whose land the road may be located, to the Commissioners, subject to their ratification, rejection, or alteration, as they may deem just and proper. And any one aggrieved by the judgment of the Commissioners in the premises may appeal, within the time prescribed by the Code, to the Circuit Court. The power thus conferred on the Commissioners is subject, however, to this limitation : “No public road,” says Article 25, section 91, “shall be opened or altered so as to pass through the buildings, gardens, yards, or burial grounds of any person, toithoul the consent of the owner thereof in writing. ’ ’ Now, in this case, upon the application of sundry persons, examiners were appointed to meet on the premises, and determine whether the public convenience required the public road at or about Erenchtown to be changed from the west to the east side of the Columbia and Port Deposit Railroad, in order to avoid crossing the rail ²⁶⁸ road. And, being of opinion that the public convenience required the proposed change to be made, the examiners so reported to the Commissioners, together with the plat of the road as located by them, and the damages awarded to the owners of land affected by this change.

Their report was ratified by the Commissioners, and from the judgment of the Commissioners no appeal was taken. The road, as located by the examiners, runs across' the front yard of the plaintiff, and within a few feet of his dwelling-house; and this is an action of trespass against the County