dissent"> Fox Judge,

dissenting:

I am unable to agree with the majority opinion in this case for' two reasons.

First, the irregularity in the pleadings created by the filing of an original declaration, called a declaration in trespass on the case, but which was, in fact, based entirely on an alleged breach of a contract; an amended declaration which in some degree sought to transform the case to one having some of the aspects of a case in tort was filed; and a second amended declaration, filed after all the evidence had been produced before the jury, is still more clearly a declaration in tort, but still retaining some of the elements of a declaration on contraer. I do not believe actions at law can be changed in this manner.

Second, I think the plaintiff’s right to recover depends solely on whether or not the location of the road of which she complains was or was. not on the right of way of the Ravenswood and Spencer turnpike. If it was located on said right of way, she was not entitled to recover, and conversely, if not located thereon, her right of recovery is clear. The case was not tried on that issue, alone, but on that issue and the further one of whether the location of the road as now constructed was the result of an agreement between the plaintiff and the defendant. I do not think the element of contract should have been allowed to enter into the case for two reasons: (1) The defendant was the known agent of the State Road Com *633 mission, and any agreement entered into by him, as such, comes within the statute of frauds, Code, 55-1-1; and (2) even a contract in writing would not have been binding to destroy the existing right of the state, in the absence of a showing' of legal authorization involving a change in the location of the right of way through the land of the plaintiff by the authorities empowered to make such change. The location of a public highway cannot be changed through a contract such as is alleged and attempted to be proven in this case. The case having been tried on allegations of contract and of tort, and there being no way of determining on which of the two elements the jury based its verdict, I would reverse the judgment, set aside the verdict, and grant a new trial to be conducted on a declaration based on tort alone.

I am authorized to state that Judge Riley concurs in this dissent.

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