Inhabitants of Detroit v. County Commissioners of Somerset , 52 Me. 210 ( 1863 )

The opinion of the Court was drawn by

Walton, J.

This is a petition for a writ of certiorari to quash the record of the doings of County Commissioners in locating a highway, lying partly in the county of Somerset and partly in the county of Waldo.

The first error assigned is as follows : —

" Said Commissioners act jointly in making their location and not each board separately, in its own county, and they have located a road at each end of the road prayed for, and left a portion in the middle unlocated, and provided no means to pass from one end to the other.”

Two or more boards of Commissioners, after having decided to locate a way, which will extend into their several counties, are not required by law to act jointly in making the location. Each board may act separately in locating so much of the way as lies within their county. Such was a correct course of proceeding under the R. S. of 1841, c. 25, §§25 and 26 ; and such we hold to be a correct course of proceeding under the R. S. of 1857, c. 18, §§16 and 17. The phraseology in the latter is somewhat different from that in the former, but we think the meaning, when applied to the location of ways extending into two or more counties, is the same. An examination of the record fails to satisfy us that the location of any portion of the way prayed for has been omitted, and it is unnecessary, therefore, to determine what would be the effect of such an omission. So much of the way as lay in- their county was located by the Commissioners of Somerset, and, as nothing appears to the contrary, it is to be presumed that the Commissioners of Waldo have done their duty and located the rest of it, which lay in their county. Such a method of locating the way we hold to be legal and proper.

The second and third alleged errors may be considered together. They are as follows : —

"In two places' the Commissioners have assigned a portion of the road to be built by Waldo and a part by Somerset county, whei’eas the law requires the towns and not the counties to build the roads, and it is not competent for. the Commissioners to require counties to build them. In one place Somerset is required to build a portion of road lying in Waldo, and Waldo a corresponding portion in Somerset county.”

An examination of the record before us discloses the fact that these errors are correctly assigned. They probably occurred in this way : — At the places referred to the way is laid out on the line between the towns of Detroit and Burn-ham, part of its width being in each; -and it is provided by law, (R. S. c. 18, §§ 38, 39,) that when a highway is thus laid out the commissioners may divide it crosswise, and assign to each town its proportion thereof by metes and bounds; and in this case it happened that the line between the towns was also the line between the counties; and by an oversight, probably, the Commissioners have stated in their record that they divided it between the counties, instead of between the towns. It thus appears, by the record, that the Commissioners omitted to make a division between the towns, for which they had lawful authority, and made one between the counties, for which they had not lawful authority; and, if the law peremptorily required the Commissioners to make such a division between the towns, so that, in omitting to make it, the inhabitants of Detroit were deprived of a clear legal right; or if, in making such a division between the counties, the petitioners were in any way aggrieved, they would be entitled to a remedy. What the proper remedy would be, we do not now determine. But the Commissioners were not peremptorily required to make such a division between the towns. The law is, that they may make such a division, not that they must make it. It was therefore optional with them to make it or not, and the omission to make it deprived the petitioners of no legal right. Nor do we perceive that the petitioners can be in any way aggrieved by the agreement that a portion of the way lying within their limits should be built by the county. If this agreement should be carried into effect, a burden would be thrown upon the county which otherwise the petitioners would be obliged to bear alone. The second and third errors assigned, therefore, furnish no ground of complaint to the petitioners.

The fourth alleged error is as follows : —■

"No damages are awarded to individuals over whose land the road passes, nor are such named.”

As no damages were awarded, it is to be presumed that in the opinion of the Commissioners none were sustained. And as no one appeared to claim any, either at the hearing or afterwards, it is fairly to be presumed that the owners of the land were of the same opinion. The record discloses no error in this respect.

The fifth and last error assigned is as follows : —■

"No time is allowed owners of land over which the road is located to take off wood, timber and other erections.”

The law allows one year for this purpose; and as nothing which the Commissioners could say would either enlarge or restrict the time, it was entirely proper for them to remain silent upon the subject.

The conclusion to which we have arrived is, that the petition must be dismissed. •

Petition dismissed, cost for respondents, to be taxed jointly — not separately.

Appleton, C. J., Cutting, Davis and Barrows, JJ., concurred.