Goodwin v. Inhabitants of Hallowell , 12 Me. 271 ( 1835 )

Weston C. J.

In the proceedings of the Court of Sessions-, set forth in the warrant to their committee, it is stated that Philip Bullen and six others, had, under their hands, petitioned the-selectmen of Hallowell to lay out the road under consideration, and the petition is recited at length. And this is evidence, under the authority of the court, of the facts thus stated.

It is urged, that only two of the three selectmen located the road, and certified their laying out-to the town, under their hands ; and that there is no evidence that the third was present, or that he was notified of their meeting. And authorities have been cited to show, that a meeting- of two only, without notice to the third, was not such a meeting as would authorize them to act. Their return states the proceedings to have been had, at a meeting of the selectmen ; from wbieh it might be contended that it was a valid and competent meeting. It further states, that it was a meeting holden at a certain time and place, in pursuance of notice previously published, in a public newspaper printed in Hallow ell. It was an official notice, of which it cannot be presumed that either of the selectmen was ignorant. That the selectmen of Hallowell did lay out the road, which the town had unreasonably refused to approve and allow, is found by the Court of Sessions.

The selectmen having duly and legally laid out the road, and the town having refused to approve and allow it, and parties aggrieved at that refusal having petitioned the Court of Sessions for relief, that court had jurisdiction of the subject matter expressly given to them, by the eleventh section of the act of 1821, in relation to highways, ch. 118. And this is a sufficient answer to the authorities, cited by the defendants’ counsel, in support of the doctrine, that the acts of a court of special and limited powers, upon a matter not within their jurisdiction, are void.

The adjudication of the court, that the town unreasonably refused, is final and conclusive upon that point; and is all which, under the statute, this part of the case requires. It was then competent for the court, under the section before cited, to accept and approve of the road laid out by the selectmen, and to direct the same to be recorded in the town book ; or to lay it out by a committee of their own appointment. It is the road petitioned for, that they are thus authorized to lay out. The original petition to the selectmen set forth the termini, and submitted, as it ought, the location to their discretion. The petition to the sessions prays, that they would direct the road laid out by the selectmen, to be recorded in the town book, or that they would cause the same to be laid out by three disinterested freeholders, according to law. We are very clear, that the committee have a discretion in the location, between the termini. The alternative given by the statute, could have no other effect, than to create a useless waste of expense, if the committee were not at liberty to vary from the location made by the selectmen.

Every member of the committee was appointed as a freeholder; and they are all described as freeholders. The town had notice, and were fully heard. If any one of the committee was not a freeholder, they might have objected to his appointment at the time. They had a further opportunity after the committee had made their return. The court would doubtless have listened to the objection, and would have made further inquiry as to the fact. Then was the time to have taken the exception; and it would be very inconvenient to bring it into controversy collaterally. There are many objections, which, if made at a proper time, and in the proper stage of judicial proceedings, would be sustained, which are otherwise regarded as waived. And of this character, in the opinion of the court, is the point now taken, that one of the committee was not a freeholder.

The sufficiency of the notice is objected to. It is such, as has been holden proper, upon an original petition. But if insufficient, it could be taken advantage of only upon certiorari. Ir- • regularities appearing upon the face of the proceedings upon roads, within the jurisdiction of the sessions, can only be corrected upon this process, according to our practice.

It is contended, that the damages, sustained by the individuals, in whose favor they are awarded in this case, are a proper charge upon the county. Their liability was first created by the statute of 1823, ch. 227, and extends only to county roads. It is said, that in this statute, roads are thus described for the first time. A county road originates with the county authorities; and usually passes through more than one town. In common language, it is a" mode of distinguishing such a road from a town or private way. The way provided for in the eleventh section of the statute first cited, under which this way was located, is called a private way throughout. It is a private way, which the committee are to lay out. The court exercise in this case a revising or appellate jurisdiction. It may be for the town generally, or it may be for one or more individuals; but it can in no proper sense be called a county road. The county, therefore, are not made chargeable with these damages.

It is further insisted, that the town is not liable, first, because it is not found for whose use the way is laid out; and secondly, because there is no order of the court, that they should be paid by the town. A town way is frequently in the statute called a private way; but in common parlance, a way laid for one or more individuals is termed a private way ; and it is believed very rarely denominated a town way. The selectmen laid out the Way in question, as a town road or highway. They do not describe it as a way located for private use. The term highway used by them, means a public road. This road, thus laid out, the sessions adjudge that the town of Hallowell unreasonably refused to approve and allow; and they accordingly authorized and empowered their committee “ to lay out said road or highway;” and when located, they ordered it to be recorded and known as such. It does then, in our judgment, sufficiently appear, that the road in question was laid out for the use of the town ; and it results that it devolves upon them to pay the damages. And they were finally determined and ascertained, when the sessions accepted the report of their committee. By the sixth section then of the act of 1828, ch. 399, a demand having been made by the plaintiff for the damages awarded to him, upon the treasurer of Hallow ell, more than thirty days before the suit, he was entitled to maintain an action of debt against the town. The defendants are to be defaulted ; and judgment is to be rendered, according to the agreement of the parties.

Defendants defaulted.