By the Court,
Downer, J.
Without the consent of the owners. no road can be laid through any orchard or gardens, set *242out, or cultivated two years or more. R. S., ch. 19, sec. 54. The circuit court instructed the jury, “ that the line of the road might be laid up to the line of the trees in the orchard, and so it might be laid up to the tilled or cultivated portion of the garden, and take the whole of the uncultivated part between the cultivated earth and the garden fence.” This instruction was based upon testimony, in substance, that the road laid out would come up to the first row of fruit trees in the west garden and orchard, and would, according to the testimony of the witnesses for the defendant below, include a part of the tilled ground of the garden; but according to the witnesses for the state, would include none of it. If the instruction is correct, then a road may be laid out, without the consent of the owner of the land, up to the fruit trees themselves. The limbs of the trees may extend over the road, and a part of the fruit fall into the highway. If it is necessary in the construction of the road, nearly half of the roots of the trees may be cut off. This is not the protection the statute gives. The road cannot be laid out in such a manner as to deprive the owner, either in whole or in part, of the beneficial enjoyment of his fruit trees. The road should be laid out some reasonable distance from the trees.
If the instruction is right in respect to the garden, the owner may lay it out with a small strip of grass or walk near and along the fence, and be required to surrender this for a highway up to the tilled or ploughed portion of the garden ; and thus be compelled to move his fence on to such tilled land. We think the statute is entitled to a more liberal construction.
The circuit court erred in giving these instructions. Eor the purpose of giving or refusing consent we consider Seymour as the owner of the premises. On the other questions raised, the court do not deem it necessary to express any opinion.
The judgment of the court below is reversed, and a venire de novo awarded.