Opinion by

All the testimony in this case conduces to show the bad condition of the road during the winter at the place where the work was done, and that on this account the road became impassable, compelling the traveler to pass through the farms adjoining in order to reach his destination. The proof also conduces to show that the improvements made were indispensable, and that on account of the peculiar condition of the clay it required either gravel or stone to make it a good road.

The appellant seems to have labored with his teams at the instance of the overseer and assisted in making this a permanent improvement; and while overseers and hands on roads should be punished for not keeping highways in repair, this is about the first instance where the overseer or the laborer has been punished for doing his work too well. Instead of withholding from him his money, he should be rewarded for placing this impassable road in good repair.

The judgment is reversed and cause remanded for further proceedings consistent with this opinion.