The commissioners of any county through which a county road has been established upon a line of the state may, upon petition and notice as hereinbefore provided, determine the width, not less than fifteen nor more than thirty feet, of the land within the county to be used for the road. (L. '90, p. 600, § 23; Rem.-Bal., § 5646.)

Right-of-way over state and public lands, width of. See §§21-23.

Road on county line. See $38.

26. Highways Across Streams.

All highways, crossing, or ending on any river, creek or stream shall be open the same width down to and across said river, creek, or stream as it is before it reaches said stream. (L. '86, p. 103, § 1;

Rem.-Bal., § 5648.)

Width of road generally.

See $2 and note; also $24. Width of road on state line. See §§24-25.

27. Re-Survey of Roads.

When the place of beginning or true course of a county road shall be uncertain by reason of the removal of any monument or marked tree by which such road was originally designated, or from any other cause, the county commissioners of the proper county may appoint three disinterested landholders of the county to review and find the line of the road, and if they deem it necessary, a competent surveyor to survey the same; and the reviewers and surveyor, after taking the oath required, shall view and survey said road, and the same correctly mark throughout as in the case of new roads, and shall make a return of the survey and a plat of the road to the commissioners, who shall cause the same to be recorded as in other cases; and from thenceforth the road, surveyed as aforesaid, shall be considered a highway. (L. '90, p. 599, § 18; Rem.-Bal., § 5639.)

See note to §12; see also next section.

This section in so far as it relates to viewers and a surveyor is probably superseded by the provisions relating to the duties of the county engineer, q. v. (§§101-108).

28. Re-Survey of Roads.

Where by reason of the loss or destruction of the field notes of the original survey, or in case of defective survey or record, or in case of such numerous alterations of any county road since the original location and survey, that its location cannot be accurately defined by

the papers on file in the proper county auditor's office, or where, through some omission or defect, doubts may exist as to the legal establishment or evidence of establishment of any county road, or highway, the board of county commissioners of the proper county may, if they deem it necessary, order such highway, or any part of the county road used and traveled by the public, to be resurveyed, platted and recorded as hereinafter provided. (L. '81, p. 11, § 1; Rem.-Bal., § 5659.)

Section 27 largely, if not wholly, supersedes this section.

29. Recording Original Survey.

A copy of the field notes, together with a plat of any highway or county road surveyed under the provisions of the preceding section, shall be filed in the office of the county auditor,* and thereupon he shall designate a day at a regular term of the board of county commissioners, not less than twenty days from the publication of said notice, upon which said board will, unless good cause be shown against so doing, approve of such survey and plat, and order them to be recorded as in cases of original establishment of a county road. (L. '81, p. 11, § 2; Rem.-Bal., § 5660.)

30. Notice of Reopening of Road.

At least twenty days before the day fixed by the auditor, as above provided, a notice in which shall be inserted the name of each resident owner or occupier of said land lying on the portion of road sought to be legalized, or abutting on the line of survey, shall be published four successive weeks in some newspaper published in the county, if any such there be, or by posting the same in five public places in the vicinity of said survey, which notice may be in the following form:

C. D., resident on that portion of the county road used and traveled as such for years, commencing at —, in - county, running, thence, (name distance and in general terms points of location), and terminating at —, has been resurveyed, and the board of county commissioners will, at their next term, hear and determine whether the road herein described and inIcluded in said survey, shall be ordered as a lawful county road and public highway, and objections thereto, or claims for damages, must be filed in the auditor's office on or before the first day of the term, A. D. 18-, or the road herein above described will be declared a county road and public highway. A. B., County Auditor.

(L. '81, p. 11, § 3; Rem.-Bal., § 5661.)

*Plats to be filed with county engineer. See $105.

31. Objections.

If no objections or claims for damages are filed on or before the first day of the term fixed for hearing the same, the board of county commissioners shall proceed to declare that such road included in said survey is a lawful county road. If objections are made to the establishment of the highway, or claims for damages are filed, three disinterested freeholders shall be appointed to appraise the damages, the report of whom shall be made to the next term of the county commissioners' court. (L. '81, p. 12, § 4; Rem.-Bal., § 5662.)

32. Damages.

No claim for damages will be allowed to any person who did, upon the original location of said road, receive damages, or who, or whose grantor, applied for, or assented to such road passing over said land, or who, when making settlement upon the tract by him occupied, found the said road in public use and traveled. The appraisers will report any and all acts of the owners of said land or their grantors which show compensation, dedication or assent to such land being used as a public highway. The board may increase, diminish, or refuse to allow any damages; to which order the parties may appeal,. within three months. (L. '81, p. 12, § 5; Rem.-Bal., § 5663.)

33. Power of Commissioners.

In case objection shall be made in writing by any person claiming to be injured by the survey made, the board of county commissioners shall have full power to hear and determine upon the matter, and may, if deemed advisable, order a change to be made in the survey. Upon the final determination of the board, or in case no objection be made at the term named in the notice of the survey, they shall approve of the same and cause the field notes and plat of the county road to be recorded, as in case of the establishment and alteration of highways, and thereafter such records shall be received by courts as conclusive proof of the establishment and lawful existence of such county road and public highway, according to such survey and plat. (L. '81, p. 12, § 6; Rem.-Bal., § 5664.)

See $9.

34. Auditor's Duty.

[If the same, or what is equivalent thereto, has not heretofore been done, the county auditor shall within six months after this act* takes

*Act refers to §§28-35, inclusive.

effect, cause every public road in his county, the legal existence of which is shown by the records and files of his office, to be platted in a book to be obtained and kept for that purpose, and to be called the "highway plat book." Each township shall be platted separately, on a scale of not less than four inches to the mile, and such auditor shall have all changes in or additions to the highways, legally established immediately entered upon said plat book, with appropriate reference to the files in which the papers relating to the same may be found.] (L. '81, p. 12, §7; Rem.-Bal., § 5655.)

This and the next section are obsolete, but are included to show the establishment of a plat book. See also $105.

35. Expenses.

The expenses, incurred by the provisions of this act,* shall be paid out of the county funds not otherwise appropriated. (L. '81, p. 12, § 8; Rem.-Bal., § 5665.)

The last two sections are obsolete, see note to next preceding section.

36. Changing Road.

If any person through whose land a county road is or may be established shall be desirous of turning the road through any other part of his land, he may, by notice and petition agreeably to the provisions of this chapter, apply to the commissioners of the county while in session, to permit him to turn the road through any other part of his land, on as good ground, and without increasing the distance to the injury of the public; and upon the receipt of such petition the commissioners shall [appoint a surveyor and three disinterested freeholders of the county as viewers of the road], who shall proceed to view and survey the ground over which the same is proposed to be turned, and to ascertain the distance which it will be increased by such proposed alteration, and make a report in writing, stating the several distances so found, together with their opinion as to the utility of making the alteration. (L. '90, p. 599, § 19; Rem.-Bal., § 5641.) Railroad building track on county road. See $268. Laying out of road generally. See §1, et seq.

Change in road destroyed. See $41.

That part in brackets is now superseded by the provisions relating to county engineer, q. v. (§§6 and 101).

37. Report of Freeholders.

If the freeholders report to the commissioners that the prayer of the petitioner is reasonable, and that the alteration will not place the

*Act refers to §§28-35.

road on the worse ground or materially increase the distance to the injury of the public, they shall, upon receiving satisfactory evidence that the proposed new road has been opened a legal width, and if in their opinion the same will be just and reasonable, declare such new road a public highway and make a record thereof, and, at the same time, vacate so much of the old road as is rendered necessary by the new; and the person desiring the alteration shall pay all the costs of the view, survey and return, unless the commissioners are satisfied that the alteration is of sufficient advantage to the public to cause the same to be paid by the county. (L. '90, p. 599, § 20; Rem.-Bal., § 5642.)

When it becomes necessary to establish a road on a county line, the inhabitants along such line may petition the commissioners of their respective counties for a view of such road in the manner provided in this chapter, and the commissioners of each of the counties interested shall appoint two discreet landholders as viewers, who, or a majority of them, shall meet at the time and place named in the order of the commissioners of the oldest county interested, who shall appoint a surveyor, and the viewers and surveyor shall also be a jury for the assessment of damages, and shall in all respects be governed by the preceding section of this chapter, and shall make their report in writing for or against such road to the commissioners of the counties concerned, and the commissioners, upon receiving such report, shall in all respects be governed by this chapter. (L. '90, p. 600, § 21; Rem.Bal., § 5643.)

The procedure outlined in this section is not deemed exclusive, but that the commissioners of the two counties may establish such a road without the necessity of appointing viewers. See $888-89.

If, on receiving such report, there is no legal objection thereto, and the commissioners of all the counties interested are of opinion that such road, if opened, would be of public utility, they shall order the same to be opened in the manner pointed out by this chapter. (L. '90, p. 600, § 22; Rem.-Bal., § 5644.)