Scarborough v. Commissioners , 41 Me. 604 ( 1856 )

Shepley, C. J.

By the record of their proceedings, it appears that the Commissioners proceeded to view and adjudicate upon a town way laid out by the selectmen of the town, which the town had refused to approve and allow.

In such cases, their records must show that they had jurisdiction, or their' proceedings may be avoided without any legal process for that purpose. Small v. Pennell, 31 Maine, 267.

They have not jurisdiction in all cases of refusal by towns to approve and allow of ways laid out by their selectmen. Their jurisdiction in such cases is conferred and defined by the provisions of the statute, c. 25, § 34. They can act only upon a petition of some person aggrieved by such refusal or delay, “if such way lead from land under his possession and improvement to any highway or town way.” It does not appear in this case, that the way which the town refused to approve did lead from land under the possession and improvement of any of the petitioners. It does appear to have been laid out over the land of some of them. It might be presumed from their being owners, and having damages awarded to them as áuch, that they were in possession. But that would not be sufficient. The way must not only lead from land under his possession, but it must be under his improvement. A person may be the owner and be in possession of land not under improvement. The intention appears to have been, to permit persons having land under their possession and improvement, when the town refused to approve of a way laid out and leading from such land to a highway or town way, to apply to the Commissioners for redress. But others, not thus situated, are not authorized to do so.. The Commissioners obtain jurisdiction only when the petition or record presents a case within the provisions of the statute.

All the facts presented by the record may be true, and the Commissioners would have no jurisdiction.

It will not be necessary to notice the other alleged errors.

Writ granted.

Tenney, and Appleton, J. J., concurred.