Williams , 59 Me. 517 ( 1871 )

Appleton, C. J.

By R. S. 1857, c. 18, § 18, “ the municipal officers of towns may personally or by agency lay out, alter, or widen town.ways,' and private ways ... on petition therefor.”

It is their duty in case of town ways to estimate damages which, by § 21, are “ to be paid by the town.”

The town way is not established until “ accepted in a town meeting legally called afterwards, and by a warrant containing an article for the purpose.” Sect. 19.

• When the ’ town way has been duly accepted, the action of the town or its officers terminates. No appeal as such can be taken. By § 22, “ ány person aggrieved by the estimate of damage, on petition to the commissioners may have them assessed in the manner provided respecting highways.”

The petition is a new, proceeding, of which neither the town nor its officers can know anything until notified. The town ■ is interested, for it is to pay the damages to those oyer whose land the road is laid.

After entry of the petition, notice should be given the inhabitants of its pendency, that they may appear and protect their rights. The petitioner may not have a legal title to the land over which the way passes. The town may, for various reasons, contest the right of the petitioners to prosecute. And if they have a right to prosecute, they should bo heard as to the appointment of the person to preside at the hearing before the jury, for if he should be interested, and the objection taken, it might vacate the proceedings. Clifford v. Co. Commissioners, 59 Maine, 262. Indeed, it is against the first principles of justice that a court should adjudicate upon the rights of parties in their absence and without giving them notice to appear.

By li. S. c. 18, § 8, “when a petition is presented for an increase of damages, an agreement may be made and entered of record to submit the matter to a committee, who shall notify and hear the parties, and make return of their decision which, being accepted, shall be conclusive. Where no such agreement is made, a jury is to be summoned, whose verdict, returned, accepted, and recorded, is conclusive.” This section clearly presupposes that the parties who are to have an opportunity to agree upon a committee to assess damages, before a jury is to be ordered, are in court or are to be notified to be there. There is to be no order to summon a jury until there has been a failure to agree, and before there is such failure, the parties, between whom the agreement is to be made, must be in court.

The more expensive mode of determining the damages by a jury is not to be resorted to in the first instance.

Before the act of 1866, c. 39, § 2 (R. S. c. 18, § 13), the remedy of the party aggrieved was by certiorari. But by that act, provision is made to except or move to set aside a verdict “ for the same causes that a verdict in court may be set aside.”

As the warrant for a jury was improvidently issued, the verdict must be set aside and the opportunity given to the parties to ascertain whether they will not agree “ to submit the matter to a committee.” If ,they do not, it will then be in season to summon a jury, and not before. Exceptions sustained.

Cutting, Kent, Walton, Dickerson, Earrows, and Dan-forth, JJ., concurred.