Woodman v. Inhabitants of Somerset , 25 Me. 300 ( 1845 )

The opinion of the Court, Tenney J. being an inhabitant of the county of Somerset and taking no part in the decision, was drawn up by

Shepley J.

This suit is upon an order drawn by the clerk of the courts upon the treasurer of the county, directing him to pay to the plaintiff the amount of damages occasioned by the location of a highway over his land.

The first objection to the plaintiff’s right to recover is, that the way was not opened and made, where it was laid out. The statute of 1821, c. 118, authorized the court of sessions, whose power was transferred to the County Commissioners, to open and make a new highway upon application therefor, showing, that the town had improperly neglected to do it. In this case an application was made to the Commissioners of the county of Franklin at their session in April, 1839, to have the highway made. A committee was appointed for that purpose, a return of whose proceedings was made at their session in December following, and accepted. That return stated, that the way, which had been laid out over the land of the plaintiff, had been opened and made. It is now proposed to prove by parol testimony, that it was not made on the ground designated by the return of its location. The County Commissioners, having jurisdiction of the subject, have acted upon it, and caused it to be made a matter of judicial decision and record, that the way has been opened and made according to the return of its location; and this must be considered as conclusive until vacated by some legal process and proceeding. If the parol testimony could be received, it might not show the fact to be otherwise. To avoid uncertainty in the location of highways,'the act of March 4, 1833, c. 79, <§> 4, provided, that in all locations of highways monuments should be erected at the angles thereof. The return in this case stated, that stone monuments had been set up and marked at each angle. The mistake in the return, made in two courses by substituting the number of rods in one course for that in the other, might be corrected by the monuments named in the return and by those set up at the angles.

The jurisdiction of the Commissioners of the county of Franklin in the appointment of a committee to open and make the way is denied, because, as it is said, proceedings respecting this way were pending in the county of Somerset on the last Tuesday of April, 1838; and the fourth section of the act passed March 20, 1838, creating the county of Franklin, provided, that “ every petition, process, matter or thing, which on the last Tuesday of April next, may be pending before the County Commissioners in said counties of Kennebec, Somerset and Oxford, shall be proceeded in and settled by said Commissioners.” The act of March 17,_ 1835, c. 168, § 1, provided, that the County Commissioners, after having laid out a highway and made return and record thereof, should order a continuance to be entered until their second regular session, to allow petitions to be filed for an increase of damages. If none were then entered, the proceedings were to be considered as closed. If such petitions were entered, the proceedings were to be further continued, until the damages had been assessed. And when a return of such assessment had been made and accepted, the act declared, that “ the record of the proceedings upon the said original petition shall be considered as completed and not before.” In this case the return of an assessment of damages by a jury had been made and accepted by the Commissioners of the county of Somerset, at their March Term, 1838, and they then ordered those damages to be paid to the plaintiff “ when evidence is produced, that the road is opened.” The proceedings on the original petition were thereby completed; and could not be pending afterward on the last Tuesday of April following. The petition to have the way opened and made, being a new process, was correctly presented and acted upon by the Commissioners of the county of Franklin.

Another objection is, that the damages should be paid by the county of Franklin and not by the county of Somerset. But it has been already shown, that the proceedings on the original petition, by which the plaintiff became entitled to receive his damages, had been completed, and the county of Somerset thereby became liable to pay them at the proper time, before the county of Franklin had any legal existence.

The plaintiff had become entitled to receive his damages by the judgment of the County Commissioners upon the production of evidence, that the way had been opened and made. But the remedy provided by the act of February 23, 1828, c. 399, =§> 6, in case of refusal to pay, was an action of debt.

The clerk of the courts, for the county of Somerset, does not appear to have had any such authority to draw the order, as would change the remedy into an action of assumpsit, or bind the county by his promise.

The county cannot be considered as the drawer of the order, and the county treasurer having refused to accept or pay it, no action can be maintained upon it against the county.

Plaintiff nonsuit.