Asa Copeland versus Abiel Packard et al., 16 Pick. 217

Shaw C. J. delivered the opinion of the Court. This was trespass against the selectmen of West Bridgewater, for a supposed irregularity in laying out a town way over the land of the plaintiff. It is in the first place contended, that this action will not lie, that the defendants were acting on apparently lawful authority in directing the contractor in making this town road, and that if there was any irregularity in the proceedings, they should have been brought before the Court by certiorari, for revision.

Whether a writ of certiorari will lie to reexamine the doings of selectmen or of towns in laying out town ways, I believe has never been decided in this Commonwealth ; I am not aware of any decision either way upon the point. In Maine it has been decided, that such proceedings cannot be brought before the court by certiorari, and therefore they have held, that the validity and regularity of these proceedings may be inquired into in an action of trespass. Harlow v. Pike, 3 Greenl. 438.

But we have not thought it necessary to give an opinion upon this question, because upon other grounds we are of opinion, that the action cannot be maintained. The first objection taken to these proceedings is, that it does not appear that the plaintiff had notice of the doings of the selectmen, or of the application for such road, before they proceeded to the location. It is conceded that the statute does not require any form of notice, nor indeed any notice, unless by implication.

Here it appears, that the plaintiff had notice at the time the selectmen made the survey; and before they had fixed on any location, it was quite open for the plaintiff to make any representation or application to the selectmen, or to ask them to fix a-time for hearing him, if he wished it. It appears, in point of fact, that the line first run by the selectmen, before the plaintiff saw them, was not the line adopted, and that they afterwards ran a new line back, which was the one actually adopted.

The proceedings of selectmen, in laying out, within their respective towns, particular and private ways, for the use of such town only, or for one or more individuals therein, are regulated by St. 1786, c. 67, § 1. These proceedings of the selectmen are merely provisional, and preparatory to the action of the town, by whom they must be approved and allowed ; and if notice be necessary by the selectmen prior to making their report, no particular form or mode of notice is necessary, and the notice in the present case was sufficient.

In regard to the proceedings of the town, the plaintiff was present at the meeting and stated his objections. Where one is actually present, no evidence of notice is requisite, or rather the presence of the party is conclusive evidence that adequate notice was given, unless indeed one appears to object to the sufficiency of the notice. Inhabitants of New Salem, Petitioners, &c. 6 Pick. 470.

The other ground of objection is, that a part of the cost of this town way was raised by subscription, and paid by individuals, and that this fact was communicated to the inhabitants of the town, at the meeting at which the way was allowed and approved, either as a motive to induce the inhabitants so to allow it, or to remove in part the opposition arising from the interest of the town, if they had to pay the whole expense. The cases of Commonwealth v. Sawin, 2 Pick. 547, and Commonwealth v. Cambridge, 7 Mass. R. 166, were relied on, in support of this objection.

Both these were cases of highways, and the decision, especially in the latter case, turned on the distinction, that the Court of Sessions had not exercised their judgment distinctly and- independently upon the question, whether the highway was of common convenience and necessity, it appearing from the record itself, that it was not so considered if made wholly at the cost of the town. But it is obvious, that this consideration, namely, at whose cost a highway is to be made, can have no bearing upon the separate and distinct question, whether such way be of common convenience or necessity.

It is strongly intimated in a more recent case, Jones v. Andover, 9 Pick. 153, that such was the ground of decision in Commonwealth v. Sawin. But without at all affecting the authority of those cases, it is proper again to refer to the obvious distinction, in the course of proceeding contemplated by the statute, between a private or town way, and a public highway. The mode of laying out a town way or private way, provided for by the first

section of the statute, is not only the same, but contained in one and the same clause. It is for the use of the town only, or of one or more individuals thereof. And the owners of land through which such roads shall be laid out, shall receive a recompense, to be paid by the town, or the individual person or persons, for whose use the road is laid out. If the whole expense of such road may be borne by individuals, it is difficult to-perceive upon what grounds of law or policy the proceeding can be held unlawful, where part of the expense is to be borne by the (own, and part by individuals.

The inducement operating upon the minds of the voters, to approve and allow the laying out such way, is certainly quite as strong where the towns are at no expense, as where they share it with individuals, and yet that is a case expressly warranted by the statute. It is plain, that in this case the legislature intended to repose a qualified judicial power in the selectmen and the town, in the confidence that they would respectively exercise it with equity and discretion, uninfluenced by interested considerations.

If this power is not thus safely and wisely deposited, it is a question of legislation, not of law, whether and in what mode it shall be changed. The Court are of opinion, that these proceedings were not rendered invalid by the fact, that a part of the expense of this town way was borne by individuals instead of being borne wholly by the town, that the road was well laid out, and that the plaintiff is not entitled to recover. Plaintiff nonsuit.