10 Me. 335 | Me. | 1833
at the ensuing June term in this county, delivered the opinion of the Court.
The defendant justifies as surveyor of highways, contending that the place where the trespass is alleged to have been committed, is a highway, duly laid out as such by the Selectmen of the town of Sidney, and adopted by the inhabitants of said town, as required by law; and that whatever he did, was done in the exercise of his lawful authority. The plaintiff contends that the road was not legally laid out, for various reasons. — 1st, Because there was no application in writing to the Selectmen, previous to their proceeding, and that the Selectmen are not authorized to act, except upon written request,
From the report of the facts in the case, it does appear, that the plaintiff holds the premises subject to the right of either county or town to lay out a road over the same, without claim for damages. In the deed under which he derives title, that right is expressly reserved. He does not, however, hold under the town, but under the Proprietors of the Kennebec purchase. —■ The town of Sidney never owned the fee, and, as a town, has no greater rights over or upon the land included in the plaintiff’s deed, in consequence of the reservation therein contained, than it would have had if no such reservation had been made. The town has the right, by law, through its proper functionaries, to lay out and make roads over any land within its limits; and, notwithstanding this reservation, no easement is acquired by the town or any of its inhabitants over the plaintiff’s land, until a road is laid out in pursuance of the provisions of law. Inasmuch as the plaintiff is not entitled to any damages for the easement, whenever the town may choose to enforce its rights, it is contended that he has no such interest as entitles him to notice previous to the laying out. The Court did give as a reason why notice was necessary in Harlow v. Pike, that those through whose land a town way is laid, are always more or less affected by such location, because they are entitled to damages occasioned thereby. That, indeed, is one way in which they may be affected, but it may not be the only way, and the Court lay it down as a general principle applicable to all cases, that those who are interested in the location are entitled to notice. ■ — 'Was not the plaintiff interested in this laying out. We think the facts shew him to have been deeply so. In the first place, the right of way was to be taken and enjoyed without any equivalent to him from the town. It was all important then to him to postpone the laying out, and this he might do by convincing the Selectmen that there was no necessity for opening such a road, that the convenience of the people did not require
In Harlow v. Pike, the Court say, “ when the legality of a “ town way comes in question, there must be proof offered that “ the Selectmen gave due notice to all individuals interested in “ the location ;” not confining it merely to the interest arising from the right to damages, but extending it clearly to every immediate interest, such as the owner of the soil must have, even if his right to damages has been relinquished. The Court say further, “ a principle should be adopted which will apply to “ all owners ; and we know of none so just and fair, and equi- “ table, as that which requires the Selectmen to give notice to “ the owners of land over which a town way is about to be “ laid, in the same manner as a committee of the Court of Ses- “ sions are bound to do.” If it is incumbent on such a committee to give notice, as it clearly is, it is equally or more important that Selectmen should give notice, as they have more enlarged and extensive powers. The committee have no authority to adjudicate upon the necessity or common convenience of the road; — that is all settled by the Court, from which they derive their appointment, and previous to its being made. Their duty is imperative to lay out. But'the Selectmen, in regard to town ways, are to determine updh the expediency and necessity of the road. Their power, in this respect, is similar in its nature to the power exercised by the Court of Sessions in adjudicating upon the necessity of a public highway. They then lay out; and in this part of their duty they exercise similar powers to those entrusted to a laying committee by the Court of Sessions. We apprehend the case is not to be found where such a. committee were excused from giving notice to the owner of land over which they laid a road, because there was in his deed a reservation of right to roads, for the town or county, free from damages, or where in such a case of omission their doings were held valid.
We do not perceive in the case any evidence of waiver of notice by the plaintiff. There is no intimation that he either knew of the laying out by the Selectmen or acceptance by the town, but the report of the Judge expressly states to the contrary ; and from what is admitted as the testimony of Perry, it would seem that no notice was given to the plaintiff of what had been done until December succeeding the laying out, which was in March. His offer to Perry to cut and clear the logs away and make a winter road upon certain conditions, is no waiver of notice or confirmation of the road, notwithstanding any irregularities or omissions in the laying out. If he had actually cleared out the road and opened it for the public, it might then perhaps have been too late for him to have contested the validity of the laying out; at any rate, he could have maintained no action. But he forbore to do this, and cut out a winter road on the exterior line of his lot, three rods in width, embracing one rod of the road as laid by the Selectmen,
We will now consider the rights of the town arising from the original laying out, division and sale of the lots. It appears that in 1761, the tract of country now comprised within the limits of the town of Sidney, and adjoining the Kennebec river, was divided into lots by direction of the Proprietors of the Kennebec purchase, at that time the owners of the whole tract. The division was made and plan returned by one Winslow. The plan represents three ranges of lots; — the first range lying upon the river and extending back one mile, the second including the second .mile from the river, and the third range including the third mile; so that each range was one mile in width. It is understood that there was no actual survey, except on the river, and that all the other lines of the three ranges were laid down without reference to known monuments or actual ad-measurement. The plan represents a vacant space of eight rods in width between each of these ranges, as left for roads ; but as there had been no actual examination or laying out of the roads, the surveyor, in addition to his return, adds, that the reservations for roads are to be altered according to the convenience of the settlers. The town road, which is the subject now in litigation, was laid by the Selectmen on one of these reservations, or range-ways, as they are now called, in the rear of front lot No. 47, which reservation had never been previously occupied as a road or way of any kind, either by the town or individuals.
Whatever rights might have been acquired by the owners of adjoining lots, it is clear that the town of Sidney acquired
After describing the front lot as fifty rods in width on the river, and three hundred and twenty poles in length, answering to the width of the first range, the conveyance proceeds with the- tract on the second range, and commences at a point one mile and eight poles from the Kennebec river, thus excluding from the grant of the tract on the second range, the eight rod reservation as delineated on Winslow’s plan. The fee of any part of the range-way did not, therefore, pass with the adjoining tract on the second range. But if the conveyance had been such that the fee in the range-way had passed with the adjoining lots, it would not relieve the defendant. In that case the plaintiff, as owner of front lot No. 47 would own to the centre of the range-way, including two rods in width of the tract on which the trespass is alleged to have been committed. If the fee did not pass with either lot by the conveyance, then it remained in the Proprietors, and is now in the plaintiff under conveyance from them. If the plaintiff owns the fee, what right has the town to disturb him in its enjoyment. If the Proprietors had expressly covenanted with their grantees for a right of way according to the reservation on Winslow’s plan, it would not have given to the town of Sidney, as a town, any rights in such ways, or imposed upon them any obligations to repair, or