¶1The opinion of the court was delivered
¶2— ;The proceedings of the court in appointing the viewers, receiving their report, and entering a confirmation nisi, at the same term that the petition was presented, are altogether illegal. The confirmation nisi was entered the next day after the report, and within five days after the first application for the road. They gave no opportunity for a hearing before the viewers, such as the law contemplates.
¶3As the laying out of a public road is a matter in which the whole community are interested, the application of Benjamin Fry cannot cure the great irregularity in-laying it out. He may have no equity, but he has brought the illegality to our notice, and we see that it affects the public rights, and makes the county liable for damages for a road which, for aught that appears, may not be necessary for any public purpose apart from the interest of the railroad company. It is, therefore, our duty to take notice of and correct the error.
¶4If the railroad company have laid out and opened the road, under the Railroad Act of 1849, the reversal of these proceedings will not necessarily disturb it. Its 'legality will depend, in that case, upon the Act of 1849, and the action of the railroad company under that action.
¶5Proceedings reversed.