Inhabitants of Detroit v. County Commissioners , 35 Me. 373 ( 1853 )

Tenney, J.

— One of the alleged defects in the record is, that the return of the commissioners does not exhibit an accurate plan or description of the highway referred to. No such want of accuracy is perceived, and none is attempted to be pointed out in argument, and this point may be regarded as abandoned.

Another ground for the writ prayed for, is, that it is not stated in the return of the commissioners, that durable monuments were erected at the angles of the location. R. S. c. 25, § 4, requires the erection of such monuments by the commissioners, though it is not provided in terms, that it shall be shown by the return. This objection, to the record, has not a sufficient basis, even if the evidence of this requirement, ought to be in the return.

The commissioners may undoubtedly adopt natural objects as monuments as well as to establish those, which are entirely artificial. And it does not appear from the return, that this part of the commissioners’ duty was disregarded, but it is evident that it was intended to be performed. In the commencement of the description of the laying out of the highway, they begin their location upon the top of a horseback at a place described, “ thence following the course of a very narrow horseback, the following courses and distances, viz,” &c. And after running many courses and distances, without always describing a monument at the end of each, they add, “all the aforesaid distances are on a narrow horseback, excepting across Sebasticook river.” If the commissioners in any part of their location had bounded it upon the bank of a river, or a town line, it cannot be doubted that monuments would be indicated with sufficient exactness ; and when they say that the several courses and distances described, are upon the top of a narrow horseback, it is not apparent, that it is not equally a reference to durable monuments at the angles. That such was the purpose .of the commissioners is manifest from the fact, that when they leave the top of the narrow horseback, they specify particularly the objects as monuments at the termination of the several courses and distances, through the residue of the description.

The defect, that there was a continuance in the commissioners’ court, of the original petition and the proceedings under it, beyond the second next regular session to be held thereafter, has been decided not to amount to a loss of jurisdiction of the court, and a material error, there having been no application in behalf of proprietors of lands, on account of damages estimated, or omitted. Orono v. County Commissioners, 30 Maine, 302. The petition for certiorari in the case now before us, in this respect, is on account of a supposed defect in the record similar to the one exhibited in the case referred to.

The duty of the commissioners to cause their returns to be recorded, as required by R. S. c. 25, § 3, has been affected by statute of 1852, c. 221, § 1, in which it is provided that the record shall be made “ whenever the proceedings in relation thereto shall be completed, and the said return, pending such proceedings, shall remain upon the said commissioners’ files in the custody of their clerk, for the inspection of interested parties.”

The Legislature, by causing the general statute to be so amended, manifestly designed that the evidence of the proceedings, in cases therein referred to, accruing subsequent to this amendment, should not be treated as essentially defective, for the reason only, that those proceedings Avere not spread upon the records.

The same chapter provided, in § 2, a cure for such defects, which had occurred previous to the Act of amendment. This last provision is annulled by c. 26, § 1, of the statutes of 1853, so that the amendment in the statute of 1852, as it now stands, may bo regarded as prospective only. The question however, whether the writ shall be granted or not, is to the discretion of the Court. There is no suggestion, that the return of the proceedings in the case before us, were not made to the clerk and remained upon his files, open to the inspection of interested parties; and none that the petitioners had not full knowledge thereof. If so, they were in possession of all the facts now deemed by the Legislature as material. In the exercise of a discretionary power, it is ordered by the Court, that the petition be dismissed.

Siiepley, C. J., and Howard and Appleton, J. J., concurred.