Town of Newbury v. Tenney , 2 Aik. 295 ( 1827 )

Sinner, Ch. J.

delivered the following opinion of the Court.

The statute directs the selectmen to divide the town into highway districts, and from time to time to alter the same as they shall judge most convenient. It also directs the towns to choose, at their March meeting annually, one surveyor to each •district, whose duty it is to superintend the laying out of the tax assessed for the making and repairing the road. The selectmen are required, annually, on or before the first day of May, to deliver to the surveyors respectively, a rate or tax-bill, containing the names of such persons as are taxed in their several districts, with the sum of their several taxes annexed to, their names. It is apparent, that to enable the inhabitants of the several towns to appoint the surveyors, the selectmen must have made known to them the location, limits, and description of the several districts.

As the appointment of the several surveyors must appear upon the town records, and necessarily have reference to districts, it would seem to be altogether suitable and proper, that the limits and description of the several districts should also appear of record, or at least, that some document under the hands of the selectmen should be accessible to the town, and the inhabitants thereof. This point, however, for the purpose of deciding the case, it is unnecessary to consider. Admitting the evidence offered by the plaintiff to have been proper, and that it -ought to have been received for the purpose of showing that the selectmen had performed their duty in dividing the town ■into highway districts, the paper or book did not furnish evidence of the further fact of the defendant’s having been apprised of-the limits and description of his district, which is denominated No. 3, which we consider essential; and if from the whole case the Court are satisfied that such testimony cannot be supplied, it would be improper to send the cause back to the county court for a further trial. It appears in the case, that the selectmen of Newbury have what is denominated the selectmen’s book, and upon that book is entered, in the year 1813, a description of the highway districts in the town ; that this description has since been, by the different sets of selectmen, altered from time to time by erasures and interlineations; that the defendant, at some former period, being selectman, had the book in his keeping. This was the evidence offered and rejected. If testimony of this description could have availed the party at all, it is very questionable whether it was not destroy-' ed by the mutilations and alterations that appeared.

The evidence, however, was not that to which the defendant or any other parson was entitled to access; it is that which may be altered at the pleasure of the selectmen, and would furnish no protection to the surveyor.

The precise limits and description of the district are important, and of which Hot only the surveyor, but the inhabitants ought to have knowledge, or the means of,knowledge. The inhabitants of the district are not subject to be called to labour beyond the limits of- the district to which they are annexed, and the surveyor is liable for all damage which may accrue by reason of any omission or neglect to repair the roads within his district, and for that only. The intention of the legislature undoubtedly was, that the division of the districts at the time of the appointment of the surveyors, should be the division by which they were to be governed, and that if alterations should be necessary, they should be previously made ; otherwise, if a new district should be formed, there would be no surveyor to act, or if by a new arrangement of districts some should be omitted, there would be surveyors appointed who would have no duty to perform, and such as were appointed for the purpose of officiating in a district then denominated by a particular number, might be transferred to a different part of the town. These remarks are made for the purpose of showing the necessity of there being some publick document in the office of the records of the town, by which the inhabitants are to be governed, and which would probably be sufficient to subject the several surveyors. But in the absence of such evidence, we consider that to make the surveyor liable, it is necessary, and so we believe the practice in most towns to have been, to accompany the rate-bill and warrant with a description of the district, properly authenticated by the signature of the selectmen.

In this case, it being evident that no such evidence as is necessary can be supplied, the verdict must stand.