The judgment of the Supreme Court was entered,
The road in question was simply surveyed to ascertain the original location. This it was decided by this court in Holden v. Cole, 1 Barr 303, cannot be done by supervisors under the General Road Law — and if in doing so they remove a fence they are liable in trespass. It is contended, however, that the removal of the fence of the plaintiff was a lawful exercise of the powers conferred on the road commissioners of Erie county by the special Acts of Assembly of 13th April 1843, Pamph. L. 217; 26th March 1846, Pamph. L. 175; 15th April 1857, Pamph. L. 205, and 2d March 1858, Pamph. L. 63. We cannot, however, find in those acts any power to re-locate an old road. Their power is to alter, vacate or lay out a new road. It is for this that an appeal and proceeding for damages are provided for any one aggrieved by their proceedings. The plaintiff below is given no appeal or redress for re-locating an old road. The answer to his complaint would have been, this is but marking the true lines of an existing road, for which you or your predecessors in title have already had their opportunity to obtain redress. There was a defect of power
Judgment affirmed.