Harrington v. Harrington

| Mass. | Sep 15, 1840

Shaw, C. J.

In an action of trespass quare clausum, the defendants justify on the ground that a town way had been laid out over the close in question, by the selectmen of Shrewsbury, and ratified by a vote of the town, and that the defendants entered, under the direction of the selectmen, for the purpose of making the road. The plaintiff insists, that the proceedings of the selectmen and of the town were irregular, the laying out void, and that the defendants cannot justify under thejn.

The first exception is, that the warrant, for the meeting of the town to act upon the report of the selectmen, was dated and issued before the day on which the selectmen actually laid out the road. This is founded upon the authority of Kean v. Stetson, 5 Pick. 492. That case was decided upon the construction of an earlier statute, differing essentially from the provisions of the existing law. The great principle there decided is, that in laying out town ways and private ways, selectmen do not act as agents of the town, but as public functionaries vested with that power by law; and that the authority of the town is simply to ratify or disaffirm their doings. The selectmen, therefore, must take the first step ; they must first proceed to lay out the way, and then call upon the town to act upon their report. By the law, as it then stood, no length of notice to persons interested was required to be given previous to the location, nor were the selectmen required to file the report of the location, any length of time before the town meeting, in any public place, to which the persons interested, and the voters- of the town, might have access. But now, by the Rev. Sts. c. 24, §§ 67 - 69, both these defects are remedied. Notice is to be given to parties, over whose lands a road is proposed, seven days before the day fixed for the location; and the location, with the boundaries and admeasurements of the way, must be filed in the town-clerk’s office, seven days before the meeting at which it is to be acted on. If, therefore, the meeting is duly notified and warned to act upon the doings of the selectmen in laying out the way, it is sufficient, although the way has not been actually laid out when the warrant is dated ; because it must be laid out, and the report filed, seven days before the meeting; and unless it is, the warrant will be merely nugatory and inoperative.

The second exception is, that the vote of the town, affirming the act of the selectmen, was conditional; that the town had no authority to annex such conditions ; and that this rendered the vote void.

Upon the mere question, whether the annexing of a condi non to the vot¿ of the town affirming and ratifying the act of she selectmen, renders the vote invalid and the act void, we think Jones v. Andover, 9 Pick. 146, is a decisive authority.

In the present case, all the conditions, except that of paying the damages for land, as part of the expenses, were in their nature conditions subsequent. The effect of a condition subsequent is not to prevent the act to which it is annexed from taking present effect; but it may defeat it afterwards, or be attended with other legal consequences. It is obvious, therefore, that the operation of such a vote was to give immediate effect to the act of the selectmen, and affirm the location of the way. If the condition was contrary to law, then the condition alone was void, and the vote would stand as if it were absolute and unconditional.

But the condition might have some effect. It may be that Daniel Harrington,. 2d, had entered into some agreement to charge himself, or his heirs, or the estate which he held, (an agreement not now considered contrary to public policy,) and that the annexation of the condition was to recognize and accede to that agreement. This was matter between said Harrington and the town, and, we think, did not render void the act and vote of the town, affirming the location made by the selectmen, and establishing the way.

The third exception is, that the conditions were not complied with. We have already stated, that all the conditions were subsequent, and therefore previous compliance with them was not necessary to give effect to the vote, except the payment of damages for land taken ; if, indeed, that is to be considered an exception. It appears by the facts in the present case, that the damages were repeatedly tendered to the party through whose land the road was laid, before the land was entered upon, and that he refused to accept the money. When a duty is to be performed, a condition or forfeiture saved, or a right established, by the payment of money, tender of the money is sufficient. It is not in the power of him who is to pay, to compel the other to receive the money. All he can do is to make a formal and legal tender; and in doing this, rights are saved, whether the other will accept or not.

We think, therefore, that none of the exceptions are well founded.

It was contended for the defendants, that even if there were irregularities in the proceedings, they could not be taken advantage of in this way, collaterally, and that there being a way de facto, the persons employed by the town to make it could not be proceeded against as trespassers. This question we have had no occasion to consider, and we give no opinion upon it.

Plaintiff nonsuit.