State in certiorari v. Inhabitants of Pownal

10 Me. 24 | Me. | 1833

The opinion of the Court was delivered at the ensuing May term in Oxford, by

Mellen C. J.

Several objections have been urged in the argument against the proceedings of the Court of Sessions in the location of the road in question. As to all of them, except one, we give no opinion ; this one we consider as sustained, and as fatal. The ninth section of ch. 68, of the revised statutes, provides that the Selectmen of the several towns in this State may lay out town or private ways, for the use of such towns only, or for one or more individuals thereof or proprietors therein ; but that no such town or private way shall be established, until the same has been reported to the town, at some public meeting thereof, held for that purpose, and by them approved and allowed. The tenth section provides, “ that if “ the Selectmen shall unreasonably delay or refuse to lay out, or “ cause to be laid out, any such town or private way, as before de- “ scribed, being thereto requested in writing, by one or more of “ the inhabitants or proprietors of land in such town, then the “ Court of Sessions for the same county, at any session thereof “ within one year, if the request appear to them reasonable, may “ cause-the same private way to be laid out, &c. &c. — The eleventh section makes a similar provision for those cases where the town shall unreasonably delay or refuse to approve and allow of such road, when laid out by the Selectmen. From a view of these provisions it is evident that the jurisdiction of the Court of Sessions, in the laying of town or private ways, is of an appellate character only.' It has no original jurisdiction in such cases. Neither has the Court appellate jurisdiction in laying out such roads, except in the two specified cases ; that is, when the Selectmen shall unreasonably delay or refuse to lay out such way ; or the town shall unreasonably delay or refuse to approve and allow of the same. Now in both the instances mentioned, the delay or refusal may have been founded on good and substantial reasons, existing and operating at the time of such delay or refusal; or, in other words, the delay or refusal may have been perfectly reasonable and proper, instead of unreasonable ; and yet at the time the Court of Sessions undertake to lay out and establish the way, these reasons may have ceased to exist; and the road prayed for may be highly beneficial to the town ; yet such facts would, of themselves, give no authority to the Court of Sessions to lay out the road. . Now, on inspection of the record before us, we find, immediately after the recital that all parties concerned had been fully heard, the following sentence by way of adjudication. “ It appears “ to the Court, and it is considered and adjudged by the Court ‘‘ here, that it is of common convenience and necessity that the “ town road described in the application, be opened and made “ by said town of Pownal.” It is no where stated in the record and proceedings of the Court in their adjudication, that the Selectmen of Pownal had unreasonably delayed or refused to lay out the road ; that is, it no where appears on such record and proceedings of the Court, that it had any jurisdiction whatever in the premises. If the Court were really satisfied from an examination of the facts of the cause while under their consideration, that the Selectmen had unreasonably delayed or refused to lay out the road, that fact should have been stated by the Court as the evidence of their jurisdiction, and of the reason for exercising such jurisdiction and proceeding to lay out the road. The omission or absence of this record evidence of jurisdiction is fatal. From the nature of the case, such evidence can only exist in the record of the opinion and adjudication of the Court; for the fads on which such opinion and adjudication are founded, in cases similar to the one under consideration, never appear on record. We are all of opinion, for the reasons above stated, that the proceedings brought before us on the certiorari must be quashed, and they are hereby quashed accordingly.