James H. Knowles vs. The Inhabitants of Eastham, 11 Cush. 429

Dewey, J. The question does not seem to be raised in the argument of the ease, whether the action of debt is a proper remedy against a town to recover damages by a land-owner for land taken for a town way, and we have not thought necessary to consider it, as the plaintiff must fail in maintaining his action for other reasons. See on the question of the form of the action, 5 Mass. 426.

If this action lies at all, it must be upon a case stated and supported by the evidence of a legal proceeding under the statute divesting the owner of the use of his property, and he in virtue of the statute becoming a creditor of the town for a certain specific sum of money, which the town is bound to pay him. Upon looking into the record of the proceedings by the selectmen laying out the road, they appear quite defective in technical accuracy. This road is laid out as “ a public highway,” as to which they would have no jurisdiction.

How far these defects are obviated by the more appropriate terms used by the county commissioners, and whether for these errors in the record the legality of the laying out of the road can be questioned except upon certiorari, the road having been finally established by the action of the county commissioners, it would be necessary to settle, if the decision of the case turned upon those points. As we have already stated, to sustain this action there must be a direct adjudication of some competent tribunal awarding a certain sum to be paid to the land-owner for damages for the taking his land for the road. By Rev.

Sts. c. 24, § 71, “ the selectmen shall estimate the damages sustained by any person by reason thereof, and the same shall be paid by the town, if it be a town way.” In case of the unreasonable refusal of the town to approve and allow a town way, laid out by the selectmen, an appeal is given to the county commissioners, but no provision as to any order by them on the subject of damages. That matter would seem to be left upon the report of the selectmen.

In the present case the selectmen,following, as it would seem, the provisions of the repealed St. 1786, c. 67, § 1, reported to the town that they had agreed with the land-owners on the amount of damages to be allowed them, instead of reporting their own independent estimate, as the Rev. Sts. c. 24, § 71, requires. But perhaps their report might be treated as equivalent to an estimate by them of the proper sum to be paid, if that was the only defect in this report; but the greater and insuperable one is that they have in no form stated any definite and certain sum to be paid to each land-owner for his damage.

Against each of the ten names of the land-owners is stated two different sums, thus, “James H. Knowles, $48.00—$32.00.” Taking this report literally, both these sums are awarded to the plaintiff. But that is not supposed by either party to have been the intention of the selectmen. If not both, which one is to be taken to be the true estimate ? It is then proposed by the plaintiff to take the smaller one. But that he cannot do, unless the smaller one is the actual estimate of damages fixed upon by the selectmen. This sliding scale of damages will not answer for practical pur-poses.

Suppose the party should apply for a jury, and the question arises whether the jury have increased the damages awarded by the selectmen, which of these two sums is to be taken as the damages allowed by the selectmen ? It seems to us that this award of damages is too uncertain and indefinite in its amount to be the basis of an action against the town to recover the same in an action of debt. The objection to this action, that the court of common pleas had no jurisdiction, because it was an “ action respecting an easement,” is unfounded. Hunt v. Hanover, 8 Met. 343.

For the cause already stated, however, the verdict must be get aside. New trial granted.