West Boston Bridge v. County Commissioners of Middlesex , 27 Mass. 270 ( 1830 )

Parker C. J.

afterward drew up the opinion of the Court. Had the commissioners a right to lay out a road upon the turnpike ? We think not. The ground has already been taken and appropriated to public use, and has been paid for by the proprietors of the turnpike. Another highway cannot be laid over it under the general power of laying out highways. It would be to defeat the charter, for if it can be done át all, it may the whole length between gate and gate, and then by a slight deviation the toll may be avoided.

If it should be adjudged necessary to lay out a new highway in such direction as to cross a turnpike, it is not necessary to lay it out upon the turnpike, but only up to the lines of it on each side, for the turnpike being a public highway, travellers will have a right to cross it without any laying out by the commissioners. This road is laid out longitudinally thirty-one rods upon the turnpike. Does the road cease to be a turnpike here and become a common highway ? Who are bound to keep it in repair, the town, in which it may lie, or the proprietors of the turnpike ? If the former, then it is because the franchise is destroyed; which cannot be done, if at all, without compensation. So that whether the franchise be real or personal estate, the proceedings would be void, nothing having been allowed but for land taken.

The commissioners, having acted upon the application for this new road and adjudged it to be for the common convenience to a certain extent, and made return of their proceedings, which were recorded, were functi officio in regard to this new road upon that application. Their further proceedings without aft application are void, as a judgment of a court without a writ would be.^*

As to laying out a highway over a turnpike, the case ot Commonwealth v. Worcester Turnp. Corp. 3 Pick. 327, is cited. This only proves that a turnpike may be laid over a town road, and this is by virtue of a special grant of the legislature. The town road is laid out under the general laws ; no one has acquired a franchise in it. The legislature has a right at any time to discontinue it and substitute another road.

Certiorari awarded.

* It appears by the case of Commonwealth v. West Boston Bridge, 13 Pica. 196, that this point was not decided.