Inhabitants of Lewiston v. County Commissioners , 30 Me. 19 ( 1849 )

Howard, J.

— Applications for a writ of certiorari being addressed to their discretion, this Court has uniformly examined the records and proceedings, in which the errors are alleged, before granting the process. If the alleged errors are found to be such as affect the forms of the proceedings only, and not the substantial merits of the case, the writ will be refused.

The object of the petitioners, in this case, is to procure the proceedings of the county commissioners, relative to a town road in Lewiston, to be quashed. To their record, and the proceedings upon which it is founded, numerous errors are alleged, affecting form and substance, but all do not require special consideration at this time.

The thirteenth error assigned, is, “ that neither in the petition of Oliver Herrick and sixty others, nor yet in the decision of the county commissioners, is there any description of any road or way that the town clerk can record, as ordered by said commissioners.”

Upon inspection of their record, we find, that it embraces the petition of Herrick and others, as the basis of their proceedings. This petition states, “ that a town way, from a stone in the ground, at the corner of Hiram Adams’ house lot, in the town of Lewiston, thence in a south-easterly direction, partly over land given by the Lewiston Water Power Company for a road, and over land of widow Joanna Frye and Daniel Tracy, to the county road leading from Lewiston bridge to Greene corner, in said town of Jjewiston, would be of great public convenience ; that the selectmen of said town, after notice and hearing of the parties, have laid out such way, and reported the same to the town at a public meeting of the inhabitants duly notified and warned, yet the town has unreasonably refused and delayed to allow and approve said town way laid out by the selectmen aforesaid, and to put the same on record ; wherefore your petitioners, considering themselves aggrieved by such delay and refusal, pray that your honors would, agreeably to law in such case made and provided, accept and approve said town way, and direct the same to be recorded in the books of said town.” This application was intended as an appeal to the commissioners, under the provisions of the Revised Statutes, c. 25, § 34.

Upon this petition the county commissioners gave notice, met and viewed the route, and heard the parties, and “ adjudged and determined, that the public convenience and necessity require that the said town of Lewiston open and build said road, and that the clerk of the court of county commissioners is hereby directed to notify the clerk of the town of Lewiston to make a record of the return of the selectmen of the said town, of the laying out of the said road, the same as though said road had been accepted by said town.” Then follows an order for the payment of costs into the county treasury by the town.

This is all, which the record contains descriptive of the road, and if the town clerk of Lewiston should record the whole record of the county commissioners, upon the books of the town, it would furnish no proper description of the way, its courses, distances, or admeasurements, whereby the town or its officers or agents, could open or construct the road.

But it is contended that the record and adjudication of the county commissioners become sufficiently definite, by embracing the petition of Herrick &. ais., and by referring to the return of the laying out of the road by the selectmen as the matter to be recorded. If it were admissible to define and sustain a defective record of the county commissioners, in that manner, the facts agreed upon and used in the argument of this case, conclusively show, that this record cannot be aided by such reference, or by proof aliunde. For the selectmen did not make a report or return to the town, of the laying out of such supposed way, with the boundaries and admeasurements, as required by the Revised Statutes, chap. 25, § 29, unless the second articles in the warrants, calling the town meetings of September 13, and October 1st, 1847. can be considered as such report.

The warrants were in the usual form, and signed by the selectmen. The second articles were, “ to see if the town will accept the following street or road, laid out by order of the selectmen, August 28, 1847, beginning at the northerly corner of Hiram Adams’ house lot.” Then follow the courses, distances and admeasurements, to the other terminus, and the conclusion, “ taking about five rods of widow Frye’s and twenty-one rods of Daniel Tracy’s land, for which they claim damages.”

These articles were the same in each warrant, but they do not purport to be a return or report by the selectmen, of the laying out the street or road; and do not determine whether it is a town or private way; or whether, or by whom damages are to be paid. They were evidently drawn in reference to a report, but not as such. They do not give the requisite information to the town, or the citizens, or the persons interested, as provided in chap. 25, § 29 and 31, of the Revised Statutes. Consequently, there was no report upon which the town could act; and there could not have been either delay or refusal, on the part of the town, to approve and allow the supposed way.

The appeal, and the proceedings of the county commissioners were predicated upon the alleged unreasonable refusal and delay of the town to approve a town way, laid out by the selectmen, yet the record shows that the county commissioners did not so adjudicate; nor did they adjudge that the allegations in the petition of Herrick & als. were proved. Indeed such allegations could not have been established, for they were contrary to the facts proved and admitted by parties.

Other reasons for quashing the proceedings of the county commissioners, are given, and supported by evidence. They have been fully discussed by counsel, but do not seem to require further consideration in this stage of the case.

We cannot refuse the writ of certiorari, and it must be granted.