Fitchburg Railroad v. City of Fitchburg , 121 Mass. 132 ( 1876 )

Endicott, J.

It is provided in the Gen. Sts. e. 43, § 61, that a town way shall not be laid out, “ unless, seven days at least previously thereto, a written notice of the intention of the selectmen to lay out or alter the same ” is served, as therein provided, on the owners of the land, over which the selectmen propose to lay out the way. The notices issue after the selectmen have formed the intention to lay out the way. The statute makes no provision for a hearing on the question whether the common convenience and necessity require the way to be laid out, as in the case of laying out highways by the county commissioners. §§ 3-6. That question the selectmen are presumed to have decided before issuing the notices to the owners of the land, and nothing remains for the selectmen to do on the day appointed but to lay nut the way.

In this case, the selectmen were requested by petition, dated August 26,1868, to lay out the way. On the same day, they ordered notice to be given to all persons interested in the land over which the petitioners requested the way to be laid out, returnable on September 19, at which time the selectmen would view the proposed route and hear the parties. And the order of notice contains this clause: “ and if they shall adjudge the prayer of said petition ought to be granted, they will then proceed to lay out and locate a road over said route.” On October 26, the way was laid out by the selectmen, and it does not appear that any other proceedings were had. Upon the record as presented, there was no notice to the owners of the land that the selectmen intended or had decided to lay out the way on the day appointed for the hearing. The owners were only notified that the selectmen would on that day consider the question whether a way should be laid out, and, if they decided in the affirmative, they would then proceed to lay out the way. On that question they had no authority to cite parties before them, and the proceeding was not in conformity to the statute.

Exceptions overruled.