
    Commonwealth versus The Inhabitants of Petersham.
    
      Oct. 5th.
    
    Where a turnpike corporation had ceased for several years to demand toll, and a town way was in due form of law laid out over the turnpike road and accepted by the town, it was held that the town was indictable for not keeping the way in repair.
    This was an indictment for not repairing a town way, which was accepted by the town on the 1st of November, 1824, having been laid out by the selectmen in due form of law. By the report of Putnam J., who tried the cause, it appeared that a turnpike road had been made by the Peters-ham and Monson Turnpike Corporation, and that in 1817, that corporation voted to open all their gates and demand no toll from thenceforward, and to leave the road to be repaired by the several towns through which it passed; and that the town of Petersham laid out the town way over this turnpike road.
    The counsel for the defendants contended at the trial, that the town had no right by law to lay out a town way over a turnpike road, under the circumstances above mentioned, and this indictment would not lie for not repairing the road in question. These objections were ruled against the defendants, and a verdict was found in favor of the commonwealth.
    
      Bigelow and Brooks, for the defendants.
    This way was laid out, but never made by the town, and an indictment does not lie against them for not making or repairing it; the proper remedy is an application to the Court of Sessions, under St. 1786, c. 67, § 2, 6, to cause it to be made.
    Oct. 9th.
    
    In case a town shall be fined for a deficiency in a road, it has, by St. 1786, c. 81, § 11, a remedy over against the surveyor of highways, but it was never supposed to be the duty of a surveyor to make a road.
    But considering the road to have been made, the liability of the turnpike corporation to keep it in repair, had not ceased in consequence of their vote and the laying out by the town. It is not in the power of one corporation to transfer its duties to another, so as to make both responsible to the public, or so as to discharge itself from responsibility. For this last purpose a surrender or forfeiture of the franchise is requisite. Commonwealth v. Worcester Turnpike Corp. 3 Pick. 327.
    Merrick, County Attorney, for the commonwealth.
    When the corporation opened their gates and ceased to demand toll, they did what was equivalent to a complete abandonment of the franchise. By that, and by accepting the road, the defendants are estopped to object that the corporation alone are liable for a deficiency in the road. Com. Dig. Franchises, F, 18; Slee v. Bloom, 19 Johns. R. 456.
   Per Curiam.

Whether the turnpike corporation have a right to discontinue making repairs, is a question between them and the government. The selectmen of Petersham have laid out a way over the turnpike road, and it has been accepted by the defendants. This is a voluntary assumption of the duty of keeping it in repair, by which they are bound, and it is no objection that others also may he obliged to repair the same way.

Judgment on the verdict  