Inhabitants of Orrington v. County Commissioners , 51 Me. 570 ( 1863 )

The opinion of the Court was drawn up by

Davis, J.

The town of Orrington refused to accept a way located by the selectmen, and thereupon the persons aggrieved thereby petitioned the County Commissioners to locate it. In their petition they do not state what kind of a way had been located by the selectmen; but the validity of that location, it not having been accepted, is not in question. The petition sufficiently shows that it was either a town way, or a private way. In either case, upon the refusal of the town to accept it, they had the right to apply to the- County Commissioners. The Commissioners have heard the parties, upon due notice, and have determined that it was laid out as a town way, and have located it as such. Their proceedings are called in question in two particulars.

1. It does not appear that the way laid out leads from land in the possession or under the improvement of any of the petitioners, to a town or highway.

But it does appear, as it did not in the case of Scarborough v. County Commissioners, 41 Maine, 604, as reported, that the petitioners are "inhabitants” of the town. And whatever construction we might give to the 11. S., 1841, c. 25, § 27, there can be no doubt that, by the R. S., 1857, c. 18, § 18, the selectmen have authority to lay out town or private ways for the "inhabitants” of the town, or for the "owners of cultivated land therein.”*

If it is laid out for any of the "inhabitants,” on petition therefor, and the town refuses to accept it, or if the selectmen refuse to lay it out for them, no matter from what place, or to what place, in the town, it leads, they, if aggrieved thereby, may petition the County Commissioners to locate it for them. 11. S., 1857, c. 18, §§22 and 23.

If refused to be laid out, or if laid out by the selectmen and refused to be accepted by the town, "for the owners of cultivated -laud therein,” who are not inhabitants, it must appear that the way leads from such land to a town or highway. Cultivated land is land under improvement. If it was necessary under the former statutes for thé owner .to be personally ." in possession ” of it, it certainly is not by our present statutes. If the land is under improvement, and he is the owner, he may petition the selectmen, and, in case of their refusal, he may petition the County Commissioners to locate a way from such land to a town or highway.

But the case at bar comes within the first clause of the statute. The petitioners were "inhabitants” of the town; and whether they owned any cultivated land therein, or whether the road was laid out from any such land to a town or highway, are immaterial questions. Lisbon v. Merrill, 12 Maine, 210.

2. But it is contended that the County Commissioners materially varied the location from that which was made by the selectmen.

Under the statute of 1821, c. 118, § 11, the way as located by the selectmen might be changed, and any way'located which would be a substantial compliance with the original petition. Goodwin v. Hallowell, 12 Maine, 271. By the R. S., 1841, c. 25, § 34, the County Commissioners had no power except to "approve and allow the way as laid out by the selectmen.” But by the R. S., 1857, c. 18, § 23, they may proceed and act upon the petition as is provided respecting highways. If the selectmen refuse to locate the way prayed for, the Commissioners may locate the way upon any route that substantially corresponds with the petition. That it may vary to some extent, either in the termini, or at intermediate points, and still be within the petition, there can be no doubt. Winslow v. County Commissioners, 37 Maine, 561. And, as a refusal to accept the way laid out by the selectmen renders their proceedings upon the petition void, we think the Legislature, by changing the statute, must have intended that the Commissioners should have power to make any location which, as in the case of highways, they could have made under the original petition.

It is not claimed that the variation is so great that the ' location would not have been valid under the petition. And therefore, the writ must he denied.

Appleton, C. J., Cutting, Kent, Dickerson and Barrows, JJ., concurred.