Inhabitants of Howland v. County Commissioners , 49 Me. 143 ( 1861 )

The opinion of tbe Court was drawn up by

Cutting, J.

This is a petition for a writ of certiorari to quash the proceedings of the' County Commissioners 'of the County of Penobscot for certain errors or defects, apparent in their record, relating to a certain highway in the town of Howland.

Sevan such errors have been assigned; four of which, only, have been relied upon by the petitioners’ counsel, which may be considered in their order.

First, "Because there was no adjudication by said County Commissioners, nor any record of any, whether any damages were sustained by persons over whose land the said highway was located, and, in point of fact, damages were sustained by such persons.”

It appears from the record and the admitted affidavits of some of the owners of real estate, over which the way passes, that these allegations are true. But for that cause, unless the petitioners have sustained or are liable to suffer an injury, they cannot maintain this process. And it has been argued with much force, that the injured and innocent proprietors, who have recently awoke from a long sleep, may reverse the proceedings and thereby render nugatory all expenditures by the town. Certainly, such fears should at once be allayed, and therefore it becomes necessary to consider that question.

If such proprietors have sustained damages by having a road made through their otherwise, perhaps, inaccessible lands at the public expense, and have received no remuneration, the question would readily arise whether it was occasioned by their own fault, or that of the Commissioners. The statute makes ample provision for the security of the rights of all parties, when duly asserted, otherwise such rights must be barred; for it is the policy of the law that at some time all contentions should lie terminated. It may then be expedient to consider concisely how such interests are guarded and protected by the statute, imposing duties upon the Court as well as vigilance upon the proprietor.

A petition in writing, signed by responsible names, must first be presented to the Commissioners, as the basis of their subsequent action, stating that the public convenience and necessity require the way to be laid out and established, also its termini and route. Then, if a view be granted, the Commissioners are required to give " thirty days’ notice of the time and place of their meeting, by causing copies of such petition, with their order thereon, to be posted up in three public places in each town, in which any part of such highway may be, and to be served upon the clerk of such towns, and to be published in some newspaper, if any there be, in the same county; which notice shall be considered sufficient for individuals, as well as the public.” Then, "if after such view and hearing of the parties, the Commissioners shall adjudge the same to be of common convenience and necessity, they shall have power to lay out such highway, and shall estimate the damages, if any, which any person may sustain by reason thereof, and shall make a correct return of their doings, under their hands, with an accurate plan or description of said highway, to their next regular session, and shall cause the same to be duly recorded.” "They shall, also, cause to be entered of record, that the original petition, upon which their proceedings are founded, is continued until their second next regular session, to be held thereafter; and all persons aggrieved by their decision, in estimating damages, shall present their petition for redress at the first or said second next regular session; and if no such petition be then presented, the proceedings ujoon the original petition shall be closed, and so entered of record; and all claims for damages, not before allowed, shall be forever barred.” Stat. of 1841, c. 25, §§ 1, 2, 3, 4.

This statute does not require the Commissioners to ascertain and determine the legal title, description, location or boundaries of each proprietor’s lot, over which the highway passes, when no one appears to claim damages between the times of the notice first given, and the close of the original, petition, — notices sufficiently given, both by publications and a public record, and a time sufficiently long to enable any person injured to present his claim for damages and to establish his title. The Commissioners, when none such appears, may well conclude that none such exists, and that no adjudication is necessary. For them to adjudge that this person, or that, has, or has not, suffered an injury, when neither is known as a proprietor, and when neither deems it prudent to be known as a claimant, would be simply ridiculous, and the argument of counsel, that, under such circumstances, the constitutional rights of the citizen have been invaded, is untenable.

The petitioners’ counsel have cited Commonwealth v. Coombs, 2 Mass., 489, to the effect that damages must be assessed, or a return made that none are sustained, a decision pronounced in 1807, on the construction of the statute of 1787, conferring certain powers and enjoining certain duties to be performed by a locating committee appointed by the Court of Sessions, who were under oath "faithfully and impartially to estimate all damages which any person may suffer in their property, by the laying out of the road.” And the Court say that such a return was necessary, " because it maybe the foundation of further proceedings, either by the town, or by any owner of the land, to correct any supposed errors in the estimation of damages.”

But that statute has since become obsolete, as well as the decision, both in Massachusetts and Maine. Later statutes and decisions now constitute the rule of law, under which an omission of the Commissioners as to damages would not debar an injured proprietor, on an application seasonably made, from his right to a trial by jury. Their adjudication in that particular may not be necessarily "the foundation of further proceedings.”

That decision has before been cited at our bar, but, with what success, can be ascertained by a reference to Inhabitants of Vassalborough, petitioners for certiorari, 19 Maine, 338. Indeed, its spirit was exorcised in its native land, in 1851, when, under a statute similar to our own, their Court say, "The provision, § 11, is, that if damage shall be sustained by any persons in their property, the Commissioners shall estimate and return the same. Now, if no damage is returned, the conclusion is, that, in the judgment of the Commissioners, none has been sustained; it is a judgment against his claim for any damages, and if the party is aggrieved' by such judgment, it is a case within the statute, and he must petition for a jury within the time limited; otherwise, he acquiesces in such judgment.” Monagle v. County Commissioners of Bristol, 8 Cush., 360.

The third error assigned, and relied upon, is not sustained by the record. No plan was returned, but there was a sufficient description. It is true that it does not appear that any stone monuments were erected at the angles or termini. But, on this point, we refer to Inhabitants of Monterey v. County Commissioners of Berkshire, 7 Cush., 394, where it is decided that such a requirement is only directory, not necessarily any part of the record, and must, from necessity, be subsequent to the location and record of the highway.

The fifth assignment for error must share the same fate. The neglect to designate a chairman of the board of Commissioners, on or after the first Monday of January, may have been an inaccuracy, but no sufficient cause to claim our interference, there being no evidence of any injury occasioned thereby to the petitioners. 19 Maine, 338, before cited.

The foregoing are the principal reasons urged why the prayer of the petitioners should be granted; and we have seen that they have no foundation to rest upon, either on principle or authority; and consequently we have come to the conclusion that the highway was legally located and established, thereby imposing a duty on the petitioners, as good and loyal citizens, to see that it was opened and completed, which they have thus far neglected to do; in consequence of which the power of the Commissioners has subsequently been invoked and exercised, under the statute, in the appointment of an agent, who has laid the whole road ■under contracts, two ox which, as the record shows, have been completed, and, for their discharge, a wan’ant of distress against the petitioners has already been issued. And, it is contended—

¡Seventhly, that the statute contemplates one entire contract, and that no warrant could issue until it was performed and audited.

The first part of the proposition we think may be incorrect, but the latter part, when that question is duly presented, may require grave consideration. If a wai*rant has been prematurely issued and an attempt made wrongfully to enforce it, this is not the proper remedy. Perhaps audita querela might be administered as a temporary relief; as to which we give no opinion. Exceptions overruled.

Tenney, C. J., Bice, Appleton, May and Kent, JJ. concurred.