Thaddeus Taylor et al. versus The County Commissioners of Hampden, 18 Pick. 309

Shaw C. J. delivered the opinion of the Court. The specific object of this petition is to set aside the proceedings of the county commissioners, in locating and laying out, without due notice to the petitioners, a highway, which had been previously adjudged to be of common convenience and necessity. The petitioners state, that they are the heirs of Robert R.

Flower, who died seised of an estate over which the highway passes, that very soon after notice was given by the commissioners fixing a time for laying out and locating the highway, Flower was confined by sickness at Suffield in Connecticut, and that he died four days before the day fixed for the location ; and they also state, that at that time they were residing at Suffield, out of this Commonwealth. They insist, that on this account there was no person who could take notice of the proceedings of the commissioners, and represent their estate, and that in regard to that estate, the proceedings were ex parte.

It is insisted on the part of the commissioners, that the petitioners had notice in fact, in sufficient season to have applied for a iurv, or had some other revision of the proceedings : but we have not thought it necessary to go into that part of the case. By St. 1827, c. 77, § 7, the commissioners are required to give notice to all persons interested, by various published notices, as therein particularly stated, before proceeding to adjudge a highway prayed for, to be of common convenience and necessity.

By St. 1828, c. 103, § 3, when the commissioners shall have determined on the common convenience and necessity of laying out a highway, before they proceed to locate the same, they shall give the like notice required to be given before proceeding to view the route. It is not denied, that in the present case the commissioners gave notice conformably to this last requisition. The complaint is, that Flower having died four days before the location, and the heirs being out of the Commonwealth, no notice, in fact, was had by the party interested.

The .Court are all of opinion, that this objection to the proceedings cannot be sustained. Had the legislature intended that every proprietor over whose land the way passes should have personal notice, the statute would have so directed. But it is obvious to perceive what difficulties would arise from requiring the commissioners, who are public officers, charged with public duties, to^ ascertain the titles of all the lands traversed by the highway intended to be located, and on peril of rendering their proceedings erroneous, to give notice to the right person.

We think the legislature intended to provide for a mode of constructive notice, which should bind all persons, 3y whatever titles they should hold, whether resident or nonresident, and whether they had long held their estates, or acquirer! mem during the pendency of the proceedings. It may sometimes happen, that actual notice may not be received, but the legislature must have considered, that on the whole, it would operate to save the rights of parties, for all practical purposes. It is made constructive notice by force of the statute, and is to have the force and effect of actual notice.

In the present case, the petitioners, as heirs of Flower, im mediately on his decease, became seised of the estate by descent, and might have appeared before the commissioners. If they did not, in fact, have notice of the proceedings, before the actual location of the highway, or before the assessment of the damages, by the commissioners, it was a misfortune arising from the operation of the law, not from any default or error of the commissioners, and it cannot, therefore, affect the validity of their proceedings. Petition dismissed.