Page , 37 Me. 553 ( 1854 )

Appleton, J.

— It is admitted that the County Commissioners duly laid out the road in the town of Augusta, in relation to the making of which the controversy between these parties has arisen, and that the time allowed by law for constructing the same expired on Dec. 1, 1848. The town hav!ng neglected to open and complete the same, on the third, day of August, 1850, Alden Sampson and others petitioned the Court of County Commissioners, at their August term holden at Augusta, to appoint an agent to open and make said road.

On the 12th of August, 1850, the town of Kennebec was incorporated including within its limits the portion of Augusta over which the road passed, and it was duly organized under its Act of incorporation, in Sept. 1850.

On the twenty-third day of October, 1850, the County Commissioners appointed this petitioner an agent to open and make passable said road, which he did to their satisfaction and acceptance previously to March, 1851.

It is conceded that the petitioner is entitled to compensation for the services he has rendered in completing the road. The controversy is as to whether this liability attaches to the city of Augusta or to the town of Kennebec.

The language of R. S., c. 25, § 40, is clear and explicit. It provides that “ if any town liable to open and make or allow any highway or private way, duly ordered and accepted by the County Commissioners, shall neglect to do so within the time limited'by the provisions contained in this chapter, the said Commissioners, on application therefor, shall appoint an agent,” <fcc. The agent thus appointed is to cause the road to be made by contract or otherwise. When the same shall be agreed to be made passable or altered, by contract, the agent is to file a certified copy of such contract in the office of the clerk of the Commissioners, who shall certify to the assessors of the town or plantation interested the amount he has contracted to give and the time within which by the contract it is to be completed. No account of such agent is to be allowed without notice to the town interested. 11 After the completion of the service of the agent and the final allowance of his accounts, the town shall be liable to pay all sums expended by the agent, with the incidental expenses of his agency and the settling of his accounts, adjudged by the said Commissioners to be reasonable, and the amounts due on any contracts by him made; and if such town shall neglect to pay the same for thirty days the Commissioners shall issue a warrant of distress therefor against Such town.” The town of Augusta on the first day of Dec. 1848, was the town, which being liable to open and make the road, had neglected so to do. Its liability then attached. No other existent corporation had been guilty of neglect. The town thus liable and thus guilty of neglect is the town against which the warrant of distress is finally to issue. The subsequent action of the County Commissioners, consequent upon the corporate neglect of the town liable, necessarily results from such neglect and is at the cost of the negligent corporation. The warrant of distress can issue only against the town originally liable and guilty of neglect. The town of Augusta having been once liable, that liability remains unless it has in some way been removed.

Nothing has been done by the Act incorporating the town of Kennebec, passed Aug. 12, 1850, (Special Acts, c. 355,) by which the town of Augusta has been relieved from the burthen thus imposed. By § 3, “ the highways also in said town of Kennebec, during the annual municipal year, are to remain chargeable respectively to the city and towns from which said new town is taken.” This section can have no such effect, for it leaves the city and towns originally liable as still chargeable.

The County Commissioners, therefore, should give notice to the city of Augusta before proceeding to the allowance of the accounts of the petitioner. Writ to issue.

Shepley, O. J., and Tenney and Cutting, J. J., concurred.