
    The Trustees of Belfast Academy vs. Salmond.
    A lot of land granted to a corporation for the purpose of erecting an Academy building thereon, and which was actually used for the purpose for which it was granted, is liable to be appropriated to the uses of the public, by the location of highways over it.
    What is reasonable notice for the selectmen of a town to give the owner of the land over which they propose laying out a road, must depend on circumstances. Where the owners were trustees of an Academy, and a majority of them lived in the town where the road was contemplated to be laid out, it was held that a notice of seven days was sufficient.
    Where after the location of such road by the selectmen, and their proceedings being laid before the inhabitants of the town, at a meeting duly called for that purpose, it was voted “ to accept the road” — after which another vote was passed “ to postpone the further consideration” of the road to the adjourned meeting; held that the road was duly accepted, and that the latter vote did not annul or in any wise affect the former.
    This was an action of trespass guare clausum fregii, and was submitted to the Court on the following agreed statement of facts.
    In June, 1809, one Ephraim McFarland conveyed in fee, by deed to the plaintiffs, four acres of land, (the locus in quo,) situate in Belfast, in this county, “ for the purpose of erecting and maintaining thereon an Academy or some higher institution of learning.” In 1812, the plaintiffs proceeded to erect a building for an Academy on said lot, which is still standing. On the 25th of September, 1825, the selectmen of Belfast having given seven days previous- notice to the plaintiffs, laid out a town-way diagonally across said lot, and running within a few feet of the Academy building. At the time when the notice aforesaid was given to the trustees, a majority of them including the President and Secretary, were, and ever since have heen, inhabitants of Belfast» On the 3d of October, 1825, a legal meeting of the inhabitants was held, the 2d article in the warrant calling it, being, “ to see if the town would approve and allow said way, called Church street,” the same being sufficiently described. At this meeting the following proceedings were, had, relative to this road, as exhibited on the town records.
    
      (! Article 2d. Voted, to accept Church street, as laid out by the selectmen and described in Art. 2d. Yeas 45, Nays 36.”
    “ Voted, to postpone the further consideration of Church street to the adjournment of this meeting.”
    “ Voted, that this meeting be adjourned to the annual meeting, jn March or April.”
    
    
      ec Voted, to reconsider the last vote.”
    
      “ Voted, to adjourn this meeting to Monday, the 11th day of October, instant, at 2 o’clock, P. M. to meet at this place.”
    At the adjournment of said meeting, held on said 11th of October, the following vote was passed.
    “ Article 2d. Upon a motion to reconsider the vote accepting Church street, it was voted not to reconsider said vote.”
    No proceedings were had relative to said way, at the annual meeting of said inhabitants, held in March or April, 1826.
    At the annual town meetings, held in April, 1831, and 1833, articles having been inserted in the warrants, calling them, at the request of the plaintiffs, “ to see if said inhabitants would discontinue said way, called Church street,” it was voted not to discontinue it.
    In 1825, after the proceedings aforesaid in town meeting, the way was made passable by the inhabitants, and has been maintained, and much used as a public road, ever since.
    In June, 1833, the trustees caused a fence to be erected on the north line of the lot and across said way, entirely obstructing the same. The defendant being a surveyor of highways, and this street lying within the limits assigned him, removed so much of the fence as was necessary to abate the obstruction, for which act, this action was brought.
    If, upon the foregoing statement, the Court should be of opinion that the plaintiffs were entitled to recover, the defendant was to be defaulted, and judgment rendered against him for nominal damages; otherwise, the plaintiffs were to become nonsuit.
    
      Allen and J. Williamson, for the plaintiffs.
    1. The original laying out of the road by the selectmen was illegal, inasmuch as no sufficient notice was given to the corporation. They were entitled to reasonable notice, and it was insisted that seven days was not such notice. It would be but reasonable that the corporation should have time enough to call a meeting and make preparations to oppose the location of the road if such should be their decision. By analogy to other cases thirty days would seem to be a reasonable notice. In suits against corporations, and in some other proceedings, that length of notice is required.
    
      2. But if the road was legally located by the selectmen it was not legally accepted by the town. There was no article in the warrant calling the meeting to see if the town would accept the road laid out, but it was to see whether they would allow, Src. The article should have pursued the phraseology of the statute.
    Again, the road was not accepted by vote. The vote to postpone the further consideration of the subject to a future meeting was virtually annulling the first vote. It was not necessary that there should be a formal vote of reconsideration. Surely no greater formality or technicality of proceedings should be required, than in the making or repealing laws of the State. And it is well known that laws may be repealed, by the passage of others inconsistent with the provisions of the first.
    Again, by the passage of the vote of adjournment, the meeting was then, to all intents, adjourned, and the inhabitants could not reconsider it. Whatever therefore, was done in relation to this matter at the adjourned meeting, on the 17th of October, was invalid, and can in no way affect this case.
    
      3. But the selectmen, or the inhabitants of the town had no legal power to locate a road over this lot, inasmuch as it had already been appropriated to public uses. Commonwealth v. Coombs, 2 Mass. 489; Arundel v. McCulloch, 10 Mass. 70; Commonwealth v. Charlestown, 1 Pick. 180; Keene v. Stetson, 5 Pick. 492. In this case, the corporation, though a private one, was established for public uses. And the selectmen of Belfast would have no greater right to locate a road over its land, than the selectmen of Brunswick would have, to lay out a road over the commons belonging to Bowdoin College.
    The statute does not give the power. The language is, “ if any person shall sustain damage,” &,c. The legislature never designed that selectmen should have the power to lay out a road over land already appropriated to public uses. Wherever the statutes use the word “ persons,” natural persons are intended, and not corporations. In the first statute granting the process of foreign attachment, it was to be used against “persons, having in their hands, &c. goods, effects, or credits belonging to another.” Afterward, the legislature passed a law, giving the same right against corporations.
    
    The constitution, Art. 21, gives the right to take private property only, which the locus in quo is not —hut if it were, the'facts do not show any such “ public exigency” in this case, as would justify the invasion of rights complained of.
    It is argued further, that the charter of this corporation is a contract, which the legislature could not impair, directly or indirectly, by a grant of power to the selectmen, or inhabitants of a town. Constitution of U. States, Art. 1, sec. 10; Allen v. McKeen, Mason.
    
    If this road be sustained, it will also defeat the design of the donor; a reference to the language of the deed will show that it would be a misappropriation of the grant. The design of the institution could not be successfully carried into execution, if embarrassed by the noise and bustle of a highway.
    The material points made in the argument on the other side, by Allyn, were fully sustained by the decision of the Court.
   The opinion of the Court, at a subsequent term, was delivered by

• Mellen C. J.

If the town-way in question was legally laid out and established, the act of the defendant in taking down the fence which had been erected across the road, is justified. The road complained of, is one running in a southeast direction, through the populous part of the town, called Church street, and dividing the lot of land belonging to the academy, in a manner which is considered by the Trustees as unreasonable as it is inconvenient ; and highly prejudicial to the interests of the Institution. The authority to inquire into the expediency, propriety, or wisdom of the location, does not belong to this Court; it is by law vested elsewhere. We can only decide the contested point as to its legality.

The first objection is, that the town of Belfast had no right by law, to accept and approve of the laying out, by their selectmen, of a town-way over the four acres of land, conveyed by McFarland to the Trustees of the Academy. And secondly, if the town had such right, that the laying out of the "way was illegal on the part of the selectmen, and that the same was never accepted by the town.

As to the first point, it is very clear that the land conveyed to the Trustees, must be considered as private property, notwithstanding the purposes for which it wras conveyed and to which it has since been applied: that is, the public have no more control over it, than any other property belonging to other corporations, or to individual citizens. It was conveyed to Trustees, for the more convenient management of the property, when it should be appropriated to its contemplated uses; but it is subject, like all other property of the kind, to certain claims on the part of the public ,• that is, to the right to appropriate private property for public uses, making just compensation therefor, as stated in the 21st section, in our declaration of rights. In virtue of this prin-* ciple, private property is appropriated to public use in the form of highways and town-ways ; and the owners have a right to a just compensation for the property thus appropriated. In the case of County roads, the county commissioners, and in case of town-ways, the selectmen and the town itself, are the agents employed by the public in making the requisite appropriations of private property for public use. We are not able therefore to discover any solidity in the first objection made by the counsel for the plaintiffs. As to the second point. The law requires the selectmen to give reasonable notice to the owners of land, over which they are about to lay out a town-way. What is reasonable notice, depends on circumstances. Seven days notice was given by the selectmen : and at that time a majority of the Trustees resided in the town. Under these circumstances we think the notice was reasonable- and sufficient. The last inquiry is, whether the town legally accepted the way. The town meeting holden on the 3d of October, 1825, was regularly warned and held; and the warrant contained a sufficient article to authorise a vote of acceptance. In acting on this, article, the town voted “to accept Church street, as laid out by the selectmen, and described in article 2d.” The town then voted to “ postpone the further consideration of Church street to the adjournment of this meeting.” The town then voted to adjourn the meeting to the annual meeting, in March or April: then reconsidered that vote, and voted to adjourn the meeting to the seventeenth day of 'the same October ; on which day, on motion to reconsider the vote of acceptance, the town voted not to reconsider it. At the annual meeting in 1826, no proceedings were had in relation to said way. What is the effect of all these votes ? The vote to postpone the further consideration of Church street, did not, of itself, in any manner affect the previous vote of acceptance; and on the 17th, the town adhered to that vote, by voting not to reconsider it. But it is contended, that after the town had passed a vote, adjourning the meeting to the next annual meeting, it was adjourned accordingly, and therefore there was no authority to reconsider that vote: if such was the consequence, then the vote of acceptance, passed previously to the vote of adjournment, stands in full force, and has not been affected in one way or another since the same was passed. The result is, that the town-way was legally laid out, and legally accepted by the town. Accordingly a non-suit must be entered.  