The opinion
HiggiNS, J.,
dissenting: The parties stipulated that Judge Bone should try the case without a jury. Pursuant to the stipulation, he found:
“5. That upon completion, said road will abut upon at least five different properties and will serve four dwellings; that said road will be open to the general public when completed and the public will have a legal right to use said road. That the appropriation of Defendants’ property is for the purpose of constructing a State maintained public road.”
Upon the foregoing finding, he concluded:
“1. That the appropriation of right of way by the Plaintiff as alleged in the Complaint across property of Defendants herein is for a public use, and the plaintiff is entitled to maintain this action.”
The finding of fact is supported by affidavits. It sustains the conclusion. Both support the order entered by Judge Bone. I vote to affirm.
DeNny, C.J. & Shaep, J., join in this dissent.