John Cool, Jr. & al. vs. Orrin L. Crommet & al., 13 Me. 250

The opinion of the Court, at a subsequent term, was drawn up by Weston C. J. The statute does not require that the doings of the selectmen in laying out a road should be recorded, previous to its being offered to the town for acceptance. And although according to .the marginal note, in the Commonwealth v. Merrick, 2 Mass. R. 529, that was held to be necessary, yet it does not appear, upon examining the case, that the court adjudged it necessary that the doings of the selectmen should be recorded, before the subject is brought before the town for their consideration. In the case of Harlow v.

Pike, and in that of Howard v. Hutchinson, cited in the argument, it was held that notice should be given, upon the principles of common justice, to the owners of the lands, over which a town road is intended to be located, previous to its being laid out; although a requirement to this effect is not to be found in the statute. But the notice thus judicially held necessary, must have a reasonable construction.

While it was .intended to afford an opportunity to the owners of the land to be heard, it may be very questionable, whether it was designed that public officers, in the discharge of their duties, are to be considered bound to take notice at their peril of a latent interest, which they had no means of ascertaining; and which the parties concerned had studiously concealed.

But without placing this part of the cause upon the peculiar circumstances, attending the title of the plaintiffs as reported, we are of opinion, that notice given either to the mortgagor, or to the mortgagee, being the tenant actually in possession, is sufficient. He has charge of the estate; and is to be regarded the owner, for the purpose of receiving a notice of this sort. And we are of opinion, that if it appear in the record of the proceedings, that such previous notice was given by the selectmen, that it is at least prima facie evidence of the fact.

With regard to the removal of the three lengths oí fence, which crossed the road, it is expressly authorised by the fourteenth

section of the act in relation to highways, statute of 1821, ch. 118; and he may exercise this authority, without first requiring the owner of the fence to remove it. The surveyor with his assistants, and such teams as were necessary, were rightfully in the road, in the regular discharge of their duty, and if the cattle strayed on to the plaintiffs’ land, being lawfully in the highway, against the will of the defendants, they are not trespassers. Dovaston v. Payne, 2 Hen. Black. 527. Stackpole et al. v. Healey, 16 Mass. R. 33.

The report of the commissioner states, that when it was necessary to use two yoke of oxen in scraping, while making the road, the forward cattle in turning, would frequently pass on to the plaintiffs’ land.

If this was caused by the voluntary act of the defendants, it may be understood to have been necessary ; for the report finds, as well in reference to this part of the case, as to the fact that tho cattle strayed on to the plaintiffs’ land, that no intention or disposition was manifested, either by the defendants, or any other persons in their employment, to do any injury to the laud adjoining the road, which could be avoided. If the road could not be made, without turning the forward cattle sometimes on to the land adjoining, tho defendants cannot be adjudged trespassers for so doing.

They were not only engaged in a lawful act, but in tho discharge of a duty, which they were bound to perform. The law which justifies the act, and imposes the duty, will protect them in the uso of all necessary means. Upon a view of the whole case, we are all of opinion, that the defendants are entitled to judgment.