William H. Perry vs. The Inhabitants of Sherborn, 11 Cush. 388

Dewey, J. The amendment to the complaint proposed to be filed at the hearing before the jury, was properly refused by the sheriff. The case was to be tried upon the complaint upon which the warrant had issued for a jury. As to this, the objections to the acceptance of the verdict arising from the insufficiency of the complaint, are in our opinion well taken. The petitioner has not presented a case in which he shows any such legal interest affected by the discontinuance of a way as entitles him to damages.

The petition should have contained a more particular description of the land of the petitioner, and the situation of the same in relation to the town ways alleged to have been discontinued, and there should also have been an allegation of injury to his property, sustained by the petitioner by reason of such discontinuance of the ways. The petition for a jury being defective in these respects, this objection would be sufficient to prevent entering a judgment upon this verdict in favor of the petitioner.

The further question is one as to the right of. the respondents to raise the objection at the hearing before the jury, that there was no discontinuance of any legally established town ways. The sheriff ruled that the question whether there was a town way or not, was not open at the hearing before the jury. This, we think, was erroneous. The validity of the proceedings of selectmen in reporting, and the town in accepting town ways, or the act of the town in discontinuing a town way, is open to inquiry in any case where the legality of such proceedings is a material subject in controversy.

A certiorari does not lie to this court to quash the proceedings in such cases for informality, or irregularity, as it does in the case of proceedings before county commissioners. The records of the latter, as to the laying out of a road, are conclusive and binding upon all concerned, until thus reversed. But a distinction in this respect as to town ways, has been long since taken and uniformly adhered to. Their validity may be impeached wherever the claim of the one party, or the defence of the other, involves the fact of the existence of such town ways.

In the present case, the petitioner can establish no claim for damages unless he first shows that there has been a town way discontinued. This is to be shown to the jury under the instructions of the sheriff as to what is necessary to establish these facts. If his ruling is wrong on that point, the party aggrieved may reserve all questions of law arising thereon for the court, to which the verdict is returnable, and by appeal or exceptions also revise the same in this court. In this way the legal rights of all parties will be secured. Verdict set aside.