(after stating the facts).' ’It will be noticed, that the removal by appeal or otherwise to the Superior Court, authorized by the section referred to, 'Contemplates a trial by jury of any issue of fact which may arise and be*317come material to the action of the commissioners, and while-this is the primary object, it is equally manifest that any error in law committed by them in exercising the conferred power, may be inquired into and corrected in the Superior Court. The appeal given to this Court will, however, bring up for review only erroneous and specified rulings made by the Judge of the Superior Court.
There is no suggestion in the record of any irregularity or disregard of the requirements of the statute in. acquiring jurisdiction of the subject-matter, authorizing the intervention of the Judge of the Superior Court; nor of any controverted fact, to be passed on by the jury. There was then no-wrong pointed out to be redressed by an appeal. The proper-judgment then to be rendered was perhaps one of affirmation, but the dismissal of the appeal has the same effect in leaving the action of the commissioners in force and undisturbed.
The appeal to this Court, as is correctly argued in the brief of counsel of the appellee, can raise the only question of the-legal efficacy of so much of the action of the commissioners-as gives the defendant or contesting party the privilege of erecting and maintaining two gates on his land across the road, to be kept “in good order for the convenience of the-public.”
The authority to license in proper cases, and thus avoid the expense of double fencing, the putting up of gates across-a public road is as explicitly conferred in §2058 upon the board of township supervisors, as is that to establish highways upon the county authorities, and when an independent movement to secure this privilege or license in reference to existing roads is made, it must be before the former body, to whose discretion the exercise of the power is committed.
' - But inasmuch as ■ the laying out of highways is entrusted to the county commissioners, and this may be done without restrictions, we see no reason for refusing the au-*318tliority to establish them, with such conditions, as without serious detriment to the public, lessen the damages which would otherwise fall upon the owner of the land passed over, and when these conditions are such as may be annexed to the enjoyment of the easement by the separate subsequent action of the subordinate township supervisors. We confine the qualifying restrictions to such as are incident to the use ■of the public easement, and recognized as such by the law itself. Why, it may be asked, when the public sanction is sought and the whole subject is before a body with ample jurisdiction to allow or refuse the application of those who desire the highway, should the owner of the land over which it is to pass, be driven to another tribunal in seeking a relief which, as incidental to the application, ought to be given as a qualification of the allowance of the highway ?
No sufficient reason for denying this right to the commissioners appears to us, and a resort to the form of procedure prescribed in the section (2058) becomes necessary only in cases of roads already established, and this for the greater convenience of the land-owner himself.
'There is no error and the judgment is affirmed.
No error. Affirmed.