Ware v. County Commissioners , 38 Me. 492 ( 1854 )

Howard, J.

— The petitioner, as part owner and tenant in common of Township numbered three, seventh range, in the county of Penobscot, applies for a writ of certiorari, to bring up the record of the proceedings of the County Commissioners, in locating a highway across that, and the adjoining township numbered three, in the sixth range, in the same county.

The original petition was for the location of a public highway across lands not situated within the limits of any organized plantation or incorporated town. In such cases the statute of 1841, c. 11, p. 196, § 1, requires that the County Commissioners, “ upon being satisfied that the petitioners ought to be heard touching the matter set forth in their petition, shall, before having any further proceedings thereon, order the petitioners to give notice of the pendency of their petition, and of the time and place appointed to consider the same, and adjudicate thereon,” in the manner therein prescribed. But in the case presented by the petitioner, no such order was made and the notice required by law was not given. The proceedings, therefore, were defective, in limine.

The notice to be given on petitions for the location of highways leading from town to town, is prescribed in the Revised Statutes, c. 25, § § 2, 3, and differs from that required on applications for locating such ways through unorganized places. It was held in Orono v. County Commissioners, 30 Maine 302, that in the former case, when giving notice of the time and place appointed for a meeting to view the route, the County Commissioners are not bound to fix the time and place for hearing the parties; but in the latter it is required by the express terms of the statute of 1841, before cited.

It appears on inspection of the copies of the record before us, that the County Commissioners did not decide at whose expense that part of the highway located across township numbered three, in the seventh range, was to be made. On that account, and to that extent at least, their proceedings cannot be sustained. Pingree v. County Commissioners, 30 Maine, 351. Writ granted.

Shepley, C. J,, and Tenney, Appleton and Hathaway, J. 3., concurred*