Opinion
(September Term, 1892.)
Petition for Public Highway — County Commissioners — Res Judicata.
A board of county commissioners denied and dismissed a petition for a public road, and at a subsequent meeting dismissed a similar petition for the same road without going into the merits of the case, and then, at a later meeting, upon petition by and against the same party as the first, allowed the public highway to be constructed: Held, the former judgments and proceedings of the commissioners were not res judicata so as to prevent the establishment of such highway.
PROCEEDING commenced on 6 October, 1890, before the board of commissioners of BURKE, to lay out and establish a public road in said county, and heard on appeal from said board of commissioners before Armfield, J., at Fall Term, 1892, on the petition and answer, and facts agreed to by the parties.
J. T. Perkins and S. J. Ervin for plaintiff. (534)
Isaac T. Avery for defendant.
The board of commissioners of Burke, at a meeting held 1 April, 1891, and after hearing evidence, determined that the road for which J. G. Warlick and others then petitioned was necessary to the public, and directed that it should be laid off according to law. And the defendant, Sarah Lowman, insists that this necessary public road should not be now established, because the board of commissioners in February, 1890, "denied" a petition of said Warlick and others for the same road, and in June, 1890, dismissed a like petition "without going into the merits of the case."
If it was true that all three of these petitions were identical, both as to the names of the petitioners and the description of the road petitioned for, we cannot see how it can be proper that the public, including the petitioners, shall be deprived of a necessary highway, because (535) heretofore, and perhaps under very different circumstances, the board once denied the petition, and at another time dismissed it without going into the merits of the case. We must assume that the board of commissioners had good and sufficient reasons for refusing to grant the petition when it first came before them, and we must likewise assume that they had good and sufficient reasons for granting it when it was last presented to them. Certainly, it must be allowed to the commissioners to "change their minds" with the changing circumstances of the community, and when new and more convincing testimony as to the necessity for the road is brought before them. There might be some ground for the contention of the defendant if it appeared that the petitions were identical, and that the evidence to prove the necessity for the road was the same. But these facts do not appear from the record.
AFFIRMED.