What roads de

lic highways.

CHAPTER LXXXVIII.

ROADS AND HIGHWAYS.

AN ACT CONCERNING ROADS AND PUBLIC HIGHWAYS.

Be it enacted by the General Assembly of the State of Colorado: 2375. SECTION 1. All roads and highways heretofore clared to be pub-established in accordance with law, excepting those of corporations and individuals used as toll roads, under articles of incorporation properly filed and duly authenticated, and roads for private use, are hereby declared to be public highways of the respective counties through which they pass, and are to be kept in repair by the proper authorities of said counties as long as they remain in general use by the traveling public.

Proceedings in

tinuance of public highway.

2376. SEC. 2.

Whenever in the opinion of the board

case of discon- of county commissioners of any county, there does not exist a need for a public road that is then in use by the citizens of said county, or the repairs of said public highway are burdensome to the citizens of said county in excess of the benefits derived therefrom, the said commissioners may. at a regular meeting of said board, appoint three disinterested qualified electors of said county, as viewers, to view said public highway and make report of said view to the board of county commissioners at their next regular meeting, setting forth fully in their report their finding, and if they recommend a discontinuance of said road, then the board may order the same vacated: Provided, that if such road runs on the county line between two counties, the county commissioners of both such counties shall appoint viewers and concur in an order vacating such road before the same be disestablished.

Proceedings in case of change of

tion of new road.

2377. SEC. 3. Any person wishing to have any public highway or loca highway changed, or a new highway laid out or located in any of the counties of this state, shall petition the board of county commissioners, which petition shall state the change asked to be made, giving the point of starting, and the terminus thereof, and the said petition shall be signed by not less than ten persons who reside within two miles of that

part of the road sought to be changed; and the petitioners shall deposit with the clerk of the county a sufficient sum to defray the expenses of viewing the proposed road, to be fixed by the board of commissioners, such sum to be paid into the county road fund, in case the prayer of the petitioners shall be refused, otherwise it shall be returned to the persons depositing the same, and if such highway or proposed highway be on the line between two counties, the boards of county commissioners of both such counties shall be petitioned, and the concurrence of both such boards shall be required to establish it; in such case each county shall open and maintain a definite part of the road, to be apportioned by mutual agreement between the said boards.

publication of

2378. SEC. 4. It shall be the duty of the county comAppointment of missioners of any county in this state, at their next meeting road viewers and after the receipt of a petition, as required in the preceding notice. section, to appoint from the qualified electors of said county, three disinterested persons as viewers, to view the road prayed for in said petition, and also to fix a day for the view of such road, and to cause to be posted notices in three of the most public places along the proposed new road, giving parties in interest notice that at such an hour on such a day, viewers will meet at the point designated in the petition as the starting point of said road, to attend to their duties as viewers of the said proposed road; said notices to be posted by one of the petitioners to be designated by the county commissioners and without cost to the county.

Issue and serv ice of warrant to

penalty for wilful neglect or

refusal to act.

2379. SEC. 5. The clerk shall issue a warrant directed to the viewers appointed, setting forth their appointment, road viewers; and requiring them to meet at the day and place named their duties; by the board of county commissioners, and to proceed thence to view and locate such road, and to survey or cause the same to be surveyed and platted, and to return the said plat, together with a full report of their viewing, and an assessment of the damages and benefits accruing to the owner of any of the lands over which the same may pass by reason of the location thereof, and the probable cost of opening such road to travel; said plat and report to be returned by said viewers into the office of the county clerk on or before the first day of the next regular meeting

Manner of viewing road.

Consideration of

by county coin

of the board of county commissioners; such warrant shall be delivered to the sheriff of the county to be served, and the sheriff shall serve the same by delivering a copy thereof to each of the viewers named therein. The original he shall return to the county clerk, with his endorsement of service. Any person appointed a road viewer, and duly served with such warrant, who shall wilfully neglect or refuse to act, shall be liable to a fine of twenty-five dollars, to be paid to the county, to be recovered in an action of debt before any justice of the peace of the county.

2380. SEC. 6. It shall be the duties of viewers of all public highways within this state, after receiving their authority to act, to meet at the time and place specified in the notice of their appointment and proceed to view the said road prayed for in the petition, (a copy of which shall be furnished them by the board of county commissioners), and commence at the point of starting named in the petition, and run out said road to the terminus by the most practicable route that they, in their judgment, can find; and in their report, which must be signed by at least two of the said viewers, they are to embody a plat of said road or changes they have made, and to make return thereof to the county commissioners within ten days after such view is completed.

2381. SEC. 7. Upon the return of such plat and assessreport of viewers ment the board of commissioners shall proceed to consider missioners. the same, and all objections which may be made thereto, and shall determine whether such road shall be located and opened or not, and may refer the matter of such viewing and assessment to the same or other viewers, with directions to report in like manner.

Notice to be

of road.

2382. SEC. 8. It shall be the duty of the county comgiven of opening missioners, within ten days after the return of any view of a public road, if in their judgment the public good require the laying out of the same, to cause notices to be posted at three places along the line of said road, that they have or will direct their proper officer to open and work such road as a public highway from and after ninety days from that date, and declaring thereby said road to be a public highway.

assessing

of Assessment and

payment of dam

in ages in excess of the pensation of any ty for refusal to

benefits; com

viewers; penal

act as viewers

the after being and tice of appoint

served with no

2383. SEC. 9. It shall be the duty of all viewers public highways, in addition to the duties defined section five of this act, to take into account all damages and benefits arising from the laying out of public highway, and report fully thereon, benefits accruing by such laying out or change awarding those damaged by the same. Those who are damaged shall receive a warrant on the county treasurer for amount of damages in excess of benefits awarded in the said viewers report, and the said viewers shall receive a warrant on the county treasurer for their services for a sum to be fixed by the county commissioners, not exceeding five dollars each per day for each day's service rendered, and ten cents a mile each, for each mile actually traveled from their usual place of residence to the proposed road they are to view, and in addition to the above amount, the surveyor shall receive ten dollars as full compensation for a full and complete report and plat of the road laid out or rejected by the said viewers; and any person appointed a road viewer, and duly served with a warrant of such appointment, who shall wilfully refuse or neglect to act, shall forfeit the sum of ten dollars to the county, to be recovered by action of debt before any justice of the peace.

ment; compensation of survey.

ors.

Record of final

viewers.

2384. SEC. 10. Whenever the viewers of any road shall have completed their labors, and returned to the county report of road commissioners their final report on any road, it shall be the duty of said board of commissioners to have all of said report, including plat of said road, put upon record in their respective counties in the office of the recorder of deeds for such county.

In case of refu sal or disqualifi

cation of one or

more viewers to

2385. SEC. 11. In case any person appointed a viewer shall refuse or be disqualified to act or cannot be found, the other two viewers may supply such vacancy, or if only act; how vacanone of said viewers appear after such notice being served, he shall have power to fill such vacancy as exist [exists] and proceed to the view of said road.

cy filled.

location of road

2386. SEC. 12. The viewers appointed shall designate In what manner and mark out such road or roads as they may locate or lay to be marked. out, either by stakes or turning a furrow on each side of said proposed road on prairie land, or by blazing trees or other appropriate landmarks in wooded or mountain districts.

How damages in excess of bene

2387. SEC. 13.

Whenever in any case the damages fits to be paid. accruing to any person by reason of the opening of any such road shall exceed the benefits according to such reports of viewers, the same shall be paid the person or persons so damaged, by warrant on the county treasury for amount of such damages.

Deposit of amount in case

unknown.

2388. SEC. 14. If the owner or owners of

owner of land is over which any such new road is located be not known or cannot be found, the damage or the excess thereof over the benefits accruing by reason of the opening of such road, shall be deposited and set apart to such owner or owners in the county treasury, and such deposit when made shall have the same effect as a payment.

What consent

obtained for lo

2389. SEC. 15. In laying out any road under the pronecessary to be visions of this act, it shall not be lawful to locate the same cation of road. through any dwelling house nor within thirty yards thereof nor through any barn, stable, office, mill or other building, nor through any garden, orchard, vineyard or stable yard appurtenant to any dwelling house, without first obtaining consent of the owner or owners of such premises.

Declaration of

public highway upon petition presented where

right of way.

2390. SEC. 16. Whenever a petition shall be presented to the board of county commissioners of any county of owners donate this state, praying for a public highway, and the names of all the owners of all the land through which said road is to be laid out, shall be signed by the owners thereof to said petition, giving the right of way through the lands and accompanied by a plat of the road, it shall be the duty of the board of county commissioners, if in their opinion the public good requires it, to declare the same a public highway, and thereupon the plat shall be filed and recorded and the said road shall become a public highway, from and after that date.

By whom notices to be

served or posted.

2391. SEC. 17. All notices which are required by any of the foregoing sections of this act, to be given or posted as directed by any section following this one, shall be served or posted by some one of the petitioners in such manner as is hereinbefore described, or as he shall be directed by the county commissioners, and the person serving said notices shall not be entitled to receive any compensation therefor from the county.