delivered the opinion of the court.
On March 2, 1880, W. G. Hawkins applied to the county court of Trousdale county to change a public-
In the circuit court the justices of the county court filed exceptions to the report of the jury of view, some of which exceptions were directed to supposed defects on the face of the report, and others to extraneous matter, such as that the route reported was impracticable, and that notice was not. given to the Cor-leys, over a part of whose land the road is asked to run. The circuit judge was of opinion that one pf these exceptions, “that the report located the road on conditions,” was well taken, and rendered the report void. He, therefore, “ suppressed it,” and appointed
By the Code, which embodies the pre-existing law, the duty of laying off and changing public roads is entrusted to the county court: Code, sec. 1183. “All roads shall be laid out by a jury of not less than five nor more than twelve householders, appointed by the county court, at any term, by an order on its minutes, specifying the names of the jurors, and the points where the road is to begin and end, its general direction, and directing the report to be made at a quarterly session of the court”: Code, sec. 1185. The mode of executing the order and the form of making the report are prescribed by sections 1186 and 1188. “ Every owner or possessor of lands . which may be affected by altering, changing or laying out of a. road, shall be notified of the proposed change or location by” the party applying, or by the officer in charge of the order'”: Code, sec. 1187. This is a comparatively recent requirement, for it is taken from the act of 1856, ch. 155. “Any person conceiving himself aggrieved by. the location or, alteration of a road may, on motion within nine months after the location, have a jury summoned to review the road > which jury may turn it to the most convenient place, taking into view the public good as well as the injury sustained by the complainant, or assess damages to be paid by the county”: Code, sec. 1189. The old law seemed to treat the preliminary proceedings and the appointment
This last act fairly implies that the application should be by petition, and it would have been in accord with the analogies of our practice that the application under the old law might be made in the same way. This course seems to have been 'pursued, and the contest made thereon in McWhirter v. Cockrill, 2 Head, 9, one of our leading cases. And, obviously,
The power to open roads is a prerogative of sovereignty, for its exercise is an appropriation of private property for public use. The power has been delegated by (he Legislature to the county courts, and. is exercised by them as a municipal function: Turnpike Co. v. Maury County, 8 Hum., 342. But in all cases which involve the rights of individuals, on which the county courts are authorized to adjudicate, they exercise judicial powers: Grant v. Lindsay, 11 Heis., 651, 666. The statute gives the right of appeal from the judgment of the court to the parties interested or aggrieved. ' The appeal is to the circuit court, and from that court to this court: Code, sec. 1191. The justices of the county court, as representatives of the public interest, are necessary parties to the appeal: Evans v. Shields, 3 Head, 70; Cannon v. McAdams, 7 Heis., 376. The appeal, by special provision of law, does not entirely vacate a judgment establishing a road, for the statute reserves to the county court the right to open the road notwithstanding the appeal: Code, sec. 1192. It has therefore been held that the appeal may operate as a broad appeal or an appeal in error according to the necessity of the case. And if the proceedings of the county court be regular, and the appellant offer no proof, the action of the court may be affirmed: Beard v. Justices, 3 Head, 78. And the county may be required in a proper case to pay costs: Senaker v. Justices, 4 Sneed, 116. Ordinarily, a broad appeal brings up to the circuit court the whole
The circuit judge in this case acted under the belief that the road must be laid out by the jury of view, and that without a report from such a jury, signed by ^he lowest number of jurors prescribed by the statute,
It would seem from the location of the road, as proposed to be changed in the original order of the county court, and as set out in the reports of both of the juries of view, that the change only involves the land of the applicant. This is, however, not absolutely certain, for the route is made to pass along a lane, which the report of the second jury of view says, u is the line between Corley and Hawkins.” If
The act of 1860 fairly implies, as we have seen, that the application for laying off or changing a public road should be made by petition. The statute does not, however, positively require that the application should be made in that form. Undoubtedly that is the proper and better practice. But we cío not think that it is indispensable to. the attainment of the ends of justice. If the county court has entertained a less formal application, and made an ordpr specifying where the road .is to begin and end, and its general dii-ection, that would be sufficient to give the court jurisdiction, especially where no objection was made to the form of the application. But the circuit judge might, in his discretion require the applicant to file a petition in his court upon the appeal so as to enable him to understand the facts contended for in support of the application.
It may be well enough to add, that the report of the first jury of view seems to authorize the .applicant to “ erect good gates ” across the road, which would be a provision apparently for his benefit, and not for the accommodation of the public, and the court properly refused to confirm the report. Although that change may run the road exclusively over the land of the applicant, the public has an interest in the location, and the county court should protect that interest.