Inhabitants of Sumner v. County Commissioners , 37 Me. 112 ( 1854 )

Shepley, C. J.

— The petitioners present five alleged errors.

The first is, that the petition containing no direct request is ambiguous, alternative, and conditional.

It should state the places, where the way desired is to commence and terminate, and its general course between them, that all interested may be enabled to judge how far such a way would be useful, and to what extent their interests might be affected. It is no.t perceived, that a petition presenting alternative places, each accurately described, for the comiHencement of a way, must necessarily be erroneous.

It does not appear in this case, that the description was so defective that a person would find it difficult to determine what was designed to be accomplished.

The second error alleged is, that it does not appear that the notices were ordered to be, or that they were posted in three public places, in each of the towns named.

The town of Sumner appears to have been notified by service of an attested copy upon its clerk. It does not appear that the way was laid out over an-p land owned by Ervin Robinson or Thomas Bonney, or that they were thereby injured. The way does appear to have been laid out to commence within four rods of the house of the only other petitioner, rendering it highly probable, that he must have had actual notice. The petition contains no allegation that either party petitioning had not actual notice, or that either has lost any right or suffered any injury by reason of the insufficiency of the notice given.

The third and fourth alleged errors may be considered in connection. They are in substance, that the proceedings of the Commissioners having been returned to their session, held in September, 1848, were not ordered to be recorded, “ till more than two years after;” that the petition was not continued to their nest regular session, and that it was not continued from term to term until a final decision was made upon a petition for increase of damages.

The record and docket entries do not appear to have been very accurately or perfectly made; and the counsel do not agree respecting the facts disclosed by them.

The return of the Commissioners bears date of their September term, 1848. The 'docket entry of that term does not so state. Nor does it state, that any order was made at that term, that their return at that term was accepted and ordered to be recorded. The letter C does appear to have been made upon the docket, under the entry of the petition, indicating that it was continued; and a like entry appears to have been made under it, at their May term, 1849, when a petition appears to have been presented by certain persons, for an increase of damages; and the report, of a committee upon that subject, bearing date on September 1, 1849, appears to have been returned to an adjournment of the September term, holden in January, 1850, when as the record states, it was accepted and ordered to be re> corded, as of the September term, 1849. Without such an order, the proceedings and record thereof, at the adjournment, would constitute part of those of September term.

The counsel for the petitioners insists, that this order was not made before September term, 1850, and he refers to the fifteenth page of the printed documents in proof of it. There is found on that page a formal entry of the time when the September term, 1850, was holden, and what officers were present, without any entry whatever of proceedings by the Commissioners at that term. The record states, that the report was continued from term to term, “ to the present term,” using the word “ term,” if that entry was made at the adjournment, to designate the adjourned session; and it appears to have been so used on other occasions, exhibited in the printed documents.

It does not appear by the record, when the entry was made, that the proceedings be closed and the way be established as a public highway. Upon the docket of the September term, 1849, there, appears to have been an entry made under the petition, “recorded book 8, pages 160 to 164.” “Proceedings closed.” It is not probable that these entries were made during the session. They may be regarded as subsequently made as of that term, and not till after the proceedings on its adjournment in January, 1850, when the report of the committee on the petition for an increase of damages appears to have been made and accepted, and the whole proceedings to have been closed.

The actual course of proceedings, so far as it may be discoverable from the record and docket entries presented, appears to have been; that the return of the Commissioners of the laying out of the road was made at their session in September, 1848; that the petition was continued to their May term, and thence to their September term, in the year 1849 ; that no order was made that the proceedings be closed until the adjournment of the September term in the month of January, 1850, when such an order was made; that a petition for an increase of damages was presented at May term, 1849; that a committee was then agreed upon, and that a report of its proceedings was presented at an adjournment of the September term, 1849, holden in January, 1850, which was accepted and ordered to be recorded as of September term, 184=9, and that all the proceedings respecting the road were then completed and closed.

Provision was made by the second section of the Act approved on February 7, 1852, that no record of any highway in other respects legally laid out shall be quashed, for the reason that the return of the Commissioners shall not have been recorded, before the final close of the proceedings.

There do not appear to have been any such irregularities in the proceedings in this case, as would prevent any corporation, or person thinking himself aggrieved, from having full opportunity to obtain redress according to the course prescribed by law.

The Court is not therefore called upon to grant the writ on account of those errors.

It is admitted, that many of the facts stated under the fifth cause of complaint have not been proved; and that the opening argument was prepared, upon the expectation that they would have been. These and some .others, it will not be necessary to notice.

Another objection is made to the record of the proceedings for the appointment of an agent to make and open the road. It is said that one was appointed, before the time allowed for the town to do it had expired. Two years were allowed for this purpose, after the proceedings were closed. As already stated, the proceedings appear to have been actually closed in January, 1850. The petition for the appointment of an agent appears to have been presented at their September term, 1852, when an order was made, that an attested copy thereof, with the order of the Court thereon, should be served upon the clerk of the town, and be posted in three public places in the town, thirty days at least before the twelfth day of October then next, that the town might then appear, and show cause why the prayer should not be granted. At an adjournment of the September term, holden on October 12, 1852, the Commissioners adjudged, that all the requirements of their order had been complied with, and that an agent should be appointed.

These proceedings appear to have been in conformity to the provisions of the statute, c. 25, § 40. It is said, that the agent made return of his proceedings, and that the town was notified to make its objections to them, when no court was by law holden. The record states, that the petition was continued to an adjourned term, holden in January, 1853, from an adjourned term held in December, 1852. It would follow, that the September term, 1852, holden by adjournment on October 12, 1852, must have been adjourned to December, 1852, and then to January, 1853, when the agent made return of his proceedings. Notice then appears to have been given to the town, to appear at a further adjournment of the same term, holden on the second Tuesday of February, 1853, when the agent’s account was allowed. The statute does not require that the Commissioners should act upon such proceedings only at their terms holden without adjournment, at the times prescribed by law.

Objection is made, that no formal judgment was entered of record against the town, for the amount expended to make the road. The amount due, appearing to have been regularly ascertained and adjudged, the proceedings should not be quashed, because a judgment for recovery was not formally entered of record. This may be properly regarded as an omission of their clerk.

The warrant of distress does not constitute a part of the extended record to be presented by the writ prayed for.

This Court, on this process, cannot inquire into the propriety of the allowance of items in the agent’s account.

Writ denied.

Howard, Hathaway and Cutting, J. J., concurred.