Henry Wood vs. The Inhabitants of Quincy, 11 Cush. 487

Dewey, J. 1. The objection taken to coroner Mann, as the presiding officer at the hearing before the jury, because he also held the office of deputy sheriff under Thomas Adams, the sheriff of Norfolk, who was interested in the case as an owner o‘f taxable real estate in Quincy, furnishes no reason for setting aside the verdict. The warrant was directed to “ any coroner of the county of Norfolk.” That office was duly held by Mr. Mann under an appointment from the governor and council.

It was a distinct office from that of deputy sheriff,- and he was not disqualified from acting as coroner by holding also the office of deputy sheriff. Colby v. Dillingham, 7 Mass. 475. 2, It is next objected to the acceptance of this verdict that the road, for the laying out of which damages are claimed, was illegally laid out by the county commissioners, because more than one year had elapsed after the selectmen had refused to lay out the same, before the same was laid out by the county commissioners.

The petition upon which the appeal was taken to the county commissioners was presented to the selectmen June 8th, 1848, and in the same month the petitioner appealed to the county commissioners at their meeting on the fourth Tuesday of June, 1848, although the final action of the county commissioners did not take place until June term, 1849.

We apprehend that all that is required by the statute, of the party in such a case, is to make the proper application within a year to the county commissioners, and that the pendency of the case before them, though protracted more than one year from the time of the refusal of the selectmen, does not vitiate the proceedings. But objections to the proceedings in the location by the county commissioners, do not properly arise here. The objection, if it exist in fact, should have been taken before the commissioners on the hearing of the petition for a jury, or their order set aside on certiora/ri. 3.

A further objection taken to this verdict is, that the petition for a jury was not presented to the county commissioners within one year after the laying out of the road, as required by the Rev. Sts. c. 24, § 76. The limit of one year by the statute has reference to the time of making the final order laying out the road, being the act which is ordered to be recorded as the location thereof. For the purposes of this application for a jury, the laying out of this road was June 26th, 1849, and the petition for a jury was presented June 25th, 1850, and so within the year.

But, as was remarked in reference to the preceding objection, this matter was one proper to be raised before the commissioners. If they improperly proceeded to order the jury, an application might be made for a certiorari or other proper process to vacate that order. 4. The next inquiry is,whether the petitioner has established a sufficient title to the land, for the taking of which he claims damages.

As to a part of this land, it seems that prior to March 2d, 1812, the same was a part of an existing town way and being such, the petitioner could recover no damages unless some change has occurred in relation to his interest in the same. The petitioner alleges that this portion of the road embraced in his present claim was by force of certain proceedings in the town of Quincy at a meeting holden on March 2d, 1812, and by adjournment on the 6th April, 1812, discontinued as a highway, and the same was transferred to him to be held in his own right.

The doings of the town, and the articles and warrant, are fully set forth in the report of the case. The

article and warrant relied upon on the part of the petitioner, were in these words, “ to choose any committee, or hear or act on the report of any committee the town may think proper.” The doings of the town show the purpose to have been to alter the line of an existing road by giving up a portion of the road already in existence, and annexing a certain other parcel, not a part of the road, to the then existing road. We think the

article in the warrant was not specific enough to authorize this, if it were competent, upon a proper warrant, to have made an alteration of this character. 5. The remaining question is, that arising upon the claim set up by the petitioner under

section 61 of the Eev. Sts. c. 24, providing that where buildings and fences have been erected and continued for more than twenty years fronting upon any highway or private way, and the boundaries thereof are not known, or cannot be made certain by the records or any monuments, such buildings and fences shall be deemed and taken to be the true boundary of said way.

As to this part of the case, the respondents requested the presiding officer to instruct the jury that “ if the former boundaries or lines of the road or highway, before the alleged exchange, or erection of the fence, are made certain, and if the jury find that the old stone wall, before the alleged exchange or erection of said fence by the petitioner, was the original boundary and line of the road or highway, so as to be made certain, then they are to give no damages to the petitioner for that part of the land which was included in ' the highway under the old boundary.” The petitioner, in reference to this point, contends that nothing but records or present existing monuments can be reded upon to avoid the effect of a fence erected and continued for more than twenty years upon and against any highway, being deemed the true boundary of such highway.

This, we think, is too limited a view of the nature of the evidence that may be offered to control the presumption arising from the erection and continuance of such fence. It is true that nothing less than certainty as to the boundaries of the highway is to prevail against it.

But if there was an ancient stone wall and fence existing at the time the later fence, now relied upon as a boundary, was built, and a portion of such ancient wall remained many years after the later fence was built, and it could be shown by any competent evidence that the line of the old stone wall was to a certainty the true boundary of the highway, it would be competent for the defendants thus to control the effect of the later built fence. But this is only to be allowed under the condition prescribed by the statute, that of the boundaries being made certain by such proof.

If there is any degree of uncertainty in the matter, and the original boundary of the highway “ is not known,” to use the language of the statute, then such fence is to be taken to be the true boundary. We think the instructions to the jury adverse to these views were erroneous, and that instructions to the effect we have above stated should have been given. Verdict set aside. Bigelow, J. did not sit in this case. See St. 1849, c. 200.