De Forest v. Wheeler

¶1Township roads are in many respects like private ways. The easement is paid for by those for whose benefit it is established, and they are bound to keep it in repair. Hence the private interests and convenience of citizens must be considered, and must operate very materially upon the determination of the question whether a township road should be vacated. The section of the statute referred to, (Swan’s Rev. Stat. 810, sec. 58,) requires two circumstances to concur to authorize the trustees to vacate a township road: Eirst, that the road shall have become useless; and second, thatmo injustice will be done by its vacation. The first is necessary to give the trustees jurisdiction; and it nowhere appears in this record, either by implication or otherwise, that the township road in question had become useless. On the contrary, the trustees seem to have been of opinion that the inconvenience of its location to some of the parties, simply over-balanced its usefulness to others. But whatever construction may be given to the statements of the trustees upon this subject, it is clear that the road was in common use by some of those through whose farms it passed, and that it had neither been abandoned as a township road, nor was it useless for the purpose for which it was established. The trustees had not, therefore, any jurisdiction in the premises. The order of the district court reversing the proceedings of the trustees, must be affirmed.