Cowgill v. Hurley

Citations

• 27 Del. 151
• 4 Boyce 151
• 86 A. 731
• 1913 Del. LEXIS 30

Syllabus

<p>1. Highways—Laying Out Road—Liability of Trespasser.</p> <p>One relying on an order of the levy court directing the opening of a road as justification for entering on another’s land must show that the road was laid out in accordance with such order.</p> <p>2. Highways—Laying Out Road—Trees and Timber in Highway.</p> <p>When a public road is laid out under an order of the court, the public acquires only such rights therein as the public easement requires, and the owner is not divested of his title, and does not part with the incidents of the soil not needed for the improvement, or repair of the road, or of the system of which it forms a part; and hence, subject to this right, he is entitled to trees within the limits of the right of way necessary to be removed, and a person opening the road, who takes such trees without giving the owner an opportunity to remove them, is liable for their reasonable value.</p> <p>3. Highways—Laying Out Road—Liability of Trespasser.</p> <p>One-opening a road under an order of court is bound to follow the courses and distances contained in the return made to and confirmed by the commissioners, and in the absence of landmarks, set up by the commissioners, should employ a competent surveyor to ascertain the route, in order that he may discharge his duties with due care and proper regard for the rights of the owner of the fee; and he is answerable for any deviation from the line of the road returned and confirmed, arising from malice, negligence, or omission to exercise his best skill and judgment.</p> <p>4. Highways—Trespass to Land—Measure of Damages.</p> <p>The measure of damages for exceeding the statutory width in opening a road and cutting timber on the land in excess of such width was the value of the land in excess of such width before the trespass, and the value thereof after the cutting and removal of such timber.</p> <p>5. Highways—Questions for Jury—Amount of Recovery.</p> <p>In an action against a person opening a road under