6788. Township construction-Taxation. 6801. No bids, new estimate, notice, con6789. Petition, notice.

[Acts 1905, p. 521. In force April 15, 1905.]

6726. Petition and notice.-1. That whenever twelve freeholders of any county, six of whom shall reside in the immediate neighborhood of a highway proposed to be located, vacated, or a change therein made, shall petition the board of commissioners of such county for the location, vacation or change thereof, such board, if satisfied that notice of such application has been given by publication once each week for two weeks successively in a newspaper published in the county, or by posting up notices in three of the most public places in the neighborhood of such highway, at least twenty days before the meeting of the board at which

such petition is to be presented, and by the county auditor mailing a copy of such notice to the post office address of each land owner affected by said proceeding at the time of posting, providing such postoffice address can be ascertained by inquiry at the office of the county treasurer, shall appoint three disinterested freeholders of the county to view such highway.

See section 6742, Burns' R. S. 1901, and notes.

This act supersedes section 6726 to 6854, Burns' R. S. 1901, providing for the opening, change and repair of highways, and the section numbers given to this act begin with the first of such sections and run continuously.

Sections 3251 to 3290, of such revision, providing for the construction and repair of bridges, and sections 6855 to 6928, regulating the construction and repair of free gravel roads and turnpikes, are also superseded by this act.

Boards of county commissioners have exclusive jurisdiction over the subject of establishing highways outside of incorporated towns and cities, whether such highways are located in one or more townships. Renard v. Grande, 29 App. 579.

If a member of the county board is interested in the establishment of a proposed highway, such interest will not affect the validity of the proceedings when such member does not participate therein. Renard v. Grande, 29 App. 579.

Petitions for the establishment of highways in one county only must be signed by twelve freeholders of the county, six of whom must reside in the immediate neighborhood of the proposed road in order to confer jurisdiction on the county board. Thrall v. Gosnell, 28 App. 174.

Amendments may be made to petitions for the location of highways, but if an amendment is made after the appointment of viewers which materially changes the location of the proposed highway, the county board can not act thereon unless a new notice is given. Thrall v. Gosnell, 28 App. 174.

When a county board acts upon a petition for the establishment of a highway, it is presumed that the board found that proper notice was given of such application. Baltimore R. R. Co. v. State, 159 Ind. 510.

If after a county board has acted upon a petition for the location of a highway the petition is amended so as to materially change the route or length of the highway, a new notice must be given in order to confer jurisdiction on the board. Thrall v. Gosnell, 28 App. 174.

6727. Duties of viewers.-2. The auditor of such county shall issue a precept to the sheriff thereof, commanding him to notify such viewers of the time, place and object of their meeting. Such viewers, at such time, after having taken an oath, before some officer authorized to administer the same, faithfully to perform their duties, shall proceed to view the highway to be located, or vacated or the change to be made; and if they shall deem such location, vacation or change to be of public utility, they shall, in case of a new highway or a change in an old one, proceed to lay out and mark the same on the best ground, not running through any person's enclosure of one year's standing without the owner's consent, unless, upon examination, a good way cannot otherwise be had without departing essentially from the route petitioned for: Provided, That where the road is laid out upon the line dividing the lands of two persons, it shall be laid one-half on each side of such line: And provided fur

ther, That whenever the location of a highway is petitioned for upon and along any line which forms also the boundary of any city or town, the board of commissioners shall, for the purpose of locating such highway, have jurisdiction over the lands and lots lying within such corporate limits, and immediately affected by such proceedings and location; and the owners of such lands and lots so affected, shall have the same rights and remedies in the matter of the location, vacation or change of such highway as the owners of the lands lying on the opposite side thereof, and outside of such city or town.

See notes to section 6743, Burns' R. S. 1901.

Prior to the act of 1899 amending section 6743, Burns' R. S. 1901, county commissioners had no authority to establish a highway when any portion thereof would be within an incorporated city or town. Gascho v. Sohl, 155 Ind. 417.

If viewers appointed to view and locate a highway do not meet at the time and place fixed in the precept issued by the auditor and qualify and proceed with their duties, they may meet at a subsequent time and perform such duties. Schepman v. Buhner, 32 App. 562.

6728. Report of viewers-Proceedings.-3. Such viewers, or a majority of them, shall make a report of their proceedings at the ensuing session of the board of commissioners, giving a full description of such location, change or vacation, by routes [metes] and bounds, and by its course, distance and width, except that in case of the vacation of a road, or any part thereof, such description only as will designate it clearly shall be required; and, in such case, a copy of the order vacating such highway shall be transmitted by the proper auditor to the trustee of the township or trustees of the townships in which such vacated highway is situated, who shall cause the supervisor or supervisors thereof to be notified accordingly.

See notes to section 6744, Burns' R. S. 1901.

What constitutes a sufficient report by viewers appointed to view a highway. Lake Erie R. R. Co. v. Shelley, 163 Ind. 36; Merom Gravel Co. v. Pearson, 33 App. 174.

6729. No objection-Order and notice.-4. If no objection be made to such proposed highway, vacation or change, such board shall cause a record thereof to be made, and, in case of such location or change, shall order the highway to be opened, and kept in repair, which order shall be transmitted to the trustee of the township or trustees of the townships in which such location or change is made; and such trustee or trustees shall cause a copy of such order to be entered at length on the township's record book or books, and notice thereof to be given to the proper supervisor or supervisors to work such highway as so located or changed. See notes to section 6745, Burns' R. S. 1901.

damages-Reviewers.-5.

6730. Remonstrance for damages Reviewers.-5. If any person through whose land such highway or change may pass shall feel aggrieved by reason of such location, vacation or change, such person may, at any

time before final action of the board thereon, set forth such grievances. by way of remonstrance under oath, stating therein that he is damaged thereby in a sum mentioned; and the said board shall thereupon appoint three disinterested freeholders of the county as reviewers, and assign a day and place for them to meet.

See notes to section 6746, Burns' R. S. 1901.

6731. Reviewers Oath and duties.-6. Such reviewers shall meet at the time and place designated, and take an oath faithfully to discharge the duties assigned them, and shall then, or on any other day to which a majority may adjourn, prior to the next session of such board, proceed to review the proposed highway and assess the damages, if any, which such remonstrator may sustain from such highway being opened, vacated or changed through his lands, and shall report the same to the ensuing session of such board.

See notes to section 6747, Burns' R. S. 1901.

In determining the question of damages for the location of a highway, the benefits accruing because of the opening of the highway are to be considered and set off against any damages resulting. Renard v. Grande, 29 App. 579.

6732. Reviewers' report-Action.-7. If a majority of the reviewers assess and report damages in favor of the remonstrator, and the board shall consider the proposed highway, vacation or change to be of sufficient importance to the public, it shall order the costs and damages to be paid out of the county treasury; otherwise such costs and damages shall be paid by the petitioners or others interested. If a majority report against the claim for damages the remonstrator shall pay the costs. When payment of damages is made as herein provided, such highway shall be recorded and ordered to be opened and kept in repair, as herein before provided, after notice to the proper trustees.

See notes to section 6748, Burns' R. S. 1901.

When reviewers assess damages for the opening of a highway the county board on receiving their report must then determine by whom the damages shall be paid, and until the damages are paid no order can be made establishing the highway. Helms v. Bell, 155 Ind. 502.

6733. Another review.-8. If it shall be made to appear to the board that the damages assessed are unreasonable, it may set aside such assessment and order another review, under the same regulations as provided in case of the first review.

See note to section 6749, Burns' R. S. 1901.

6734. New viewers-Utility and damages-Duties.-9. If any freeholder of, and residing in, such county shall remonstrate against the proposed highway at any time before final action thereon, as not being of public utility, other reviewers may be appointed, who shall, after having taken an oath faithfully to discharge the duties assigned them, meet at