| Me. | Nov 29, 1887
Sometime prior to 1885, a town road or way was made from the county road, near C. H. Littlefield’s store, to Ogunquit river. The legislature of that year enacted a special act which provided : " A highway may be laid out, constructed and maintained in the manner provided in R. S., c. 18, across the tide waters of Ogunquit river, in the town of Wells ; but not below the southerly line of the road leading from the county
After this special act took effect, certain inhabitants of York and of Wells duly petitioned the county commissioners to locate a "highway” from the county road, near Littlefield's store, extending easterly to and over Ogunquit river, to high water on the ocean beach. Accordingly, after due preliminary proceedings had, the commissioners, at their October term, 1885, reported in favor of, and located the highway as prayed for.
From this location, the inhabitants of Wells duly appealed, a committee was appointed, who, after a hearing, made their report, wherein they " affirmed the judgment of the commissioners, except so much of the location of said highway across Ogunquit river as lies below the southerly line of the town road leading from the county road, near C. H. Littlefield’s store, to said river, which we reverse,” specifying the portion intended to be reversed, extending from highwater mark one hundred and ninety-four feet toward the channel of the river.
To the acceptance of the committee’s report, the appellants, at the September term, 1886, filed three written objections and introduced evidence which they contended supported their allegations. The presiding justice overruled the objections and ordered the report to be accepted; to which rulings the appellants alleged exceptions which are now before us for decision.
1. The first objection is, in substance, That the location affirmed by the committee covers the identical territory of the town road and does not otherwise connect with any county road. The answer is, that the commissioners had authority to locate a highway over and upon a previously existing town road, when either terminus of such location connects with a county road or highway, although the whole of such location is within the limits of one and the same town. Harkness v. Co. Com. 26 Maine, 353; Windham v. Co. Com. 26 Maine, 406, 410; King v. Lewiston, 70 Maine, 406; Acton v. Co. Com. 77 Maine, 128.
2. That a part of the highway located by the commissioners and affirmed by the committee, is below the southerly line of the town road mentioned in the special act. The answer is,
3. That the commissioners had no original jurisdiction to locate a highway from the county road, near Littlefield’s store, to Ogunquit river and across the tide waters thereof, nor do the provisions of the special act of 1885 confer such jurisdiction ; and that the committee had no authority to affirm such unauthorized location. Answer: As already seen, the commissioners had authority to locate a highway to the river, inasmuch as one terminus was at a county road or other highway. Of course the commissioners could not locate across tide waters without the authority of the legislature; and this authority the special act of 1885 confers. To be sure, it does not contain the words " county commissioners,” and hence does not in direct, express terms, authorize that board eo nomine to make the location, as the Spec. St. 1846, c. 365, authorized the "county commissioners” of Waldo county to locate a highway across Fish river, or as the Spec. St. of 1870, c. 282, authorized the " county commissioners ” of Kennebec county to build a bridge across the Kennebec river. Nevertheless, the special statute of 1885 did authorize " a highway ” to be located across the Ogunquit " in the manner provided by R. S., c. 18.” And "highway may include a county bridge, county road or county way.” R. S., c. 1, § 6, cl. VI. It never means a town way in the statute. Cleaves v. Jordan, 34 Maine, 9, 13. As it authorized a "highway” to be located, and that, too, "in the manner provided by R. S., c. 18;” and as highways can only be located by county commissioners, under R. S., c. 18 (§ 1), we perceive no difference in the authority conferred, between an act authorizing county commissioners in iotidem, verbis to locate a highway, and an act authorizing a " highway ” to be located " in the manner provided in R. S., c. 18.”
It is also further urged under the third objection that the commissioners did not, in their report, "judge the way to be of common convenience and necessity,” as required by R. S., c. 18,
Exceptions overruled.