
    * Andrew Cragie versus John Mellen and Others.
    When the selectmen of a town locate a town way, they are not to estimate the damages sustained by the owner of the land over which the way passes; but if they cannot agree with the owner, he must make application to the Sessions, now the Common Pleas.
    A way laid out by the selectmen from one part to another of a county road, may yet be a town way for the convenience of the inhabitants, and properly laid out by the selectmen.
    When a town way has been laid out by the selectmen, and approved by the town, it is immediately a way, although a party aggrieved by the location has a year to apply to the court for a discontinuance.
    A meeting of a town for the choice of representatives, and for the transaction of the ordinary business of the town, may be called by one warrant, distinguishing the different classes of voters.
    Trespass for breaking and entering the plaintiff’s close in Cambridge, treading down his grass, subverting his soil, &c.
    The defendants pleaded the general issue, which was joined. They also filed a brief statement, according to the statute of 1792, c. 41, alleging, in substance, that the locus in quo is a private or town way, laid out for the use and convenience of the inhabitants of Cambridge, and regularly approved by them ; and that the defendants, as surveyors of highways for that town, entered and made the same passable, as by law was required ; and this, they say, is the same breaking, entering, &c., which is complained of by the plaintiff in this action as a trespass.
    The issue jo.ned between the parties was tried at the sittings after the last October term, before Parker, J., and a verdict taken lor the defendants, subject to the opinion of the Court upon the mat-tors of law reserved by the judge, as stated in his report.
    The report states the question for the decision of the Court to be, whether, by the record of the proceedings of the town of Cam bridge respecting the laying out by the selectmen, and approval by the town, of the road through and over the plaintiff’s close, the said selectmen, who are the defendants in this action, have maintained their justification. The points insisted on by the plaintiff, as showing the illegality of the proceedings, were, — that it does not appear, by the laying out of the road by the selectmen, that any damages were by them assessed and reported to the town for the use of those persons who were injured by the road; that the road does not appear to be a private * way for the [ * 8 J benefit of the inhabitants of said town, but is a public highway, in which all the citizens of this commonwealth are inter ested, and so not within the jurisdiction of the town ; that the selectmen entered upon and opened this road before the next term of the Court of Sessions after the way was approved by the inhabitants of the town ; and that the meeting at which the way was approved by the town was not legally warned or held. — The action stood continued to this term upon the plaintiff’s motion for a new trial.
    
      In support of the plaintiff’s motion, it was argued, as to the first point, that by the tenth article in the declaration of rights it is expressly declared that, “ whenever the public exigencies require that the property of any individual should be appropriated to the public uses, he shall receive a reasonable compensation therefor.” The plain intent and meaning of the provision is, that the party shall receive the compensation or equivalent before his property is taken from him. The usage is acknowledged to be otherwise; but this has arisen from inattention to their rights in citizens who had suffered, and malus usus abolendus est.
    
    As to the second exception, it was said that the statute carefully and plainly distinguishes between public highways from town to town or place to place, and which are of general convenience to the citizens at large, and those which are for the accommodation only of the inhabitants of a town, or of one or more of them. Of the former the Sessions formerly, and now the Common Pleas, only, have jurisdiction, who are indifferent as to interest, who are more capable of judging of the expediency or necessity of a public way, and who are under oath as to this and every other part of their duty. That this was the alteration of a public county road, and not the laying out of a town way for the accommodation of the inhabitants only, was apparent from its passing from one part of a county road to another part of the same road ; from the uncommon width given to it, and from the whole proceedings, which [ * 9 ] * constantly keep in view the facilitating of the public travel. If the selectmen have this authority, the jurisdiction of the Common Pleas, as to this subject, is in fact taken away, expressly against the provisions of the statute.
    As to the third exception, it was argued that the law, having given to the party aggrieved, by the laying out such a way as the defendants contend this to be, a year for applying to the Sessions, and having empowered and directed that court, on such applica tian, to inquire into, and determine by a jury with respect to the necessity or convenience of such laying out, must have intended that in the mean time every thing should remain in statu quo until the year should expire, or at any rate until the Sessions should sit, so that the party aggrieved might apply. If another construction prevails, the provision of the statute is rendered nugatory. For of what avail will an application to the Sessions prove, after the whole mischief is done ? — after, as in this case, a road of eight rods in width, with a deep canal on either side, is completed through the whole extent of the plaintiff’s land ? Unless the defendants are liable for the damage sustained by the plaintiff, he is without remedy.
    It was contended, in the last place, that the town meeting, at which this way was accepted and approved, was not a legal meeting for such a purpose, it appearing that it was called by the same warrant, and appointed to be holden at the same time and place, with a meeting for the election of the representatives of the town in the legislature; while the qualifications of the voters in those meetings respectively were wholly distinct, and at one a moderator chosen pro hac vice presided, while at the other the selectmen are, by the constitution itself, appointed to moderate. If the meeting was irregular, the way was never legally approved, and the pretended justification of the defendants wholly fails them.
    
      For the defendants, it was said that the declaration of [ * 10 J * rights does not make the payment of the compensation for property appropriated to public uses a condition precedent. If the plaintiff has sustained damage, an abundant remedy is provided him by law, and he ought to have pursued that remedy, rather than to endeavor to obtain his satisfaction from officers acting in the use of their best discretion. The remedy which the law furnishes is equal to any damage the plaintiff may sustain within the value of the real and personal estate of all the inhabitants of the town of Cambridge. Further, the statute expressly says that no private way laid out by the selectmen shall be established as such, until reported to ana approved of by the town; plainly im plying that when it shall be so approved, it shall be thenceforward to all intents such a way.
    The statute not only does not require the selectmen to award damages to the party whose land is appropriated, but does not even authorize them to act on the subject, except by mutual agreement with the party claiming such damages. As they are themselves party to the claim, it would be highly improper to invest them, even in the first instance, with the power of estimating the damages. If they cannot mutually agree, the Sessions are empowered to settle the question.
    That the selectmen and the town had authority to lay out and establish this way, or, in other words, that it is a town or private way, is inferred from its being wholly within the town, prayed for by inhabitants of the town only, and to be paid for by the town, who would certainly not willingly incur such an expense for a mere general accommodation to the citizens at large. Its communicating at either end with a public road already existing, furnishes not a shadow of objection to its being of private use and benefit to the inhabitants only.
    The constant usage, both under the former statute, containing tiimilar provisions, and under the present, is a sufficient answer to the plaintiff’s third exception, which goes the length of saying that the selectmen may lay out a * town way, and [ * 11 ] the town may accept it, and after this, if no one complains of it within a year from the acceptance, it shall be a town way, and not otherwise. — The provision of law that time shall be given to owners of land over which a way is laid, to take off the timber and other wood, clearly shows that the road exists from the acceptance and recording of it; and the town is indictable for any neglect or unreasonable delay in rendering it passable after such acceptance and record.
    As to the objection to the meeting, at which this way was accepted, it appears that all who were entitled to vote, were duly warned to attend ; and it cannot be presumed that any not entitled would be permitted by the moderator to vote. The two meetings might well enough be called by one warrant, it being issued by the same selectmen, and served and returned by the same officer, who would have performed similar duties, had there been two separate warrants.
    The action, was continued nisi for advisement, and at the following March term in Suffolk, the opinion of the Court was delivered as follows by
   Parker, J.

The first point relied upon by the plaintiff is, that the selectmen, when they laid out this road, did not make any estimate of the damages sustained by the plaintiff, and that in their return no notice is taken of these damages.

It is a sufficient answer to this objection, that the statute, authorizing the laying out of private ways by the selectmen, does not require damages to be estimated by them. It does provide that the party aggrieved shall be entitled to such recompense as he and the selectmen shall agree upon ; and it provides further, that, if there shall be no agreement by the parties, a jury shall be summoned by the Court of Sessions, or a committee shall be agreed on by the parties, for the purpose of ascertaining such damages.

It is true that, in the location of a public highway by a committee of the Court of Sessions, such committee are to [ * 12 ] * estimate the damages under oath, and make return thereof to the court. But there is no analogy between that case and the present; for in that case the committee are disinterested, and are supposed to be adequate and impartial judges of the damages; whereas in this case the selectmen are parties, and on that account wholly unfit to estimate the amount of damages, which would be a suitable recompense to the aggrieved party.

No sum having been proposed by either party, upon which an agreement could have been bottomed, the plaintiff should have made his application to the Court of Sessions for a jury, or should have agreed with the selectmen or the town upon a committee, and would thus have been suitably indemnified for the injury he has sustained.

The second exception to the proceedings of the selectmen and of the town is, that it appears from the record thereof, that the road so laid out and approved is a public way or highway, and not a private way, for the use of the inhabitants of the town of Cambridge only ; and therefore that the town had no authority or jurisdiction over the same; the statute relative to this subject giving the authority to lay out public ways exclusively to the Court of General Sessions of the Peace then in being, which court had the original and final jurisdiction given to them of this subject.

Upon looking into the proceedings, we find that a number of the inhabitants of Cambridge petitioned the selectmen of that town to lay out this road, stating that it would be very convenient to a great majority of the inhabitants of the town ; that the selectmen heard all persons supposed to be interested, laid out the road, and returned that they had done it for the accommodation of a large majority of the inhabitants, and for the use of the town; and the return is accepted by the town at a meeting of the inhabitants held for the purpose of considering the report of their selectmen upon this subject.

But it appears also by the record, that the road so laid * out leads from one part to another of a preexisting county [ * 13 ] road, and hence the plaintiff insists that, under the name of a town way, it is, in fact, but altering and straightening a public highway, in which all the citizens of the commonwealth have as much interest as the inhabitants of the town of Cambridge; and of course it cannot have been laid out for the use of that town only.

We have given due consideration to this objection, but do not find that it has much weight. It is true that the statute, authorizing the selectmen of towns to lay out private ways, does, in terms, Confine this authority to the laying out of such ways as shall be for the use of the town to which they belong only; but it is evident that the intention of the legislature, in using these words, was only to distinguish the cases within the authority of the towns by their selectmen, from those committed to the Court of Sessions.

Whenever a road is wanted by the public from town to town, or through the county from one point to another, the jurisdiction is given to the county court, and with manifest propriety; for the conflicting interests of the several towns, through which the great country roads should pass, would prevent such a location of them as would be for the public good.

When the inhabitants of a town, or a portion of them, want a road within that town, then, as the expense is to be borne, and the advantage to be enjoyed, by the inhabitants, the power of laying it out and controlling it is given to them in the first instance, reserving the right to such individuals as may be aggrieved, to apply for a revision of the question to the Court of Sessions, who may, by a committee or jury, confirm or annul the doings of the town.

Nor is it any objection to the exercise of the authority by the town, that the road to be laid out by them will be as much used by the inhabitants of other places, or by strangers who may have occasion to pass it, as by those for whose use it was declared to be established. For the real utility of a road to any town may consist less in the actual * passing and repassing through [ * 14 ] it by the inhabitants of the town, than in facilitating the intercourse of strangers or inhabitants of other towns with them. Thus, suppose the great highway from the country to the metropolis should pass through the skirts of a town, the inhabitants of which are principally settled in a compact state in the centre ; it is obvious that a village so situated would offer little inducement to the farmer and others travelling to market, to turn out of their way for the ac commodation of its inhabitants. And it is equally obvious that a road so laid out, as to facilitate the access of people from the country with their produce to such a village, would be of great convenience and utility to its inhabitants, although few of them might themselves have occasion to pass and repass such a road. And we do not see why a road established for such purposes by the inhabitants of any town is not authorized by law, it being manifestly for their benefit, and perhaps of no importance to the public.

But there is another answer to the objection made by the plaintiff, which is, that the statute has given to the town the right of judging whether any proposed road be for its convenience or not; and that the decision of the town upon the question regularly submitted to it is final, unless, within the time limited by the statute, there has been an application to the Court of Sessions, and the doings of the town have been overruled.

We cannot, in this incidental way, in opposition to the voice of the inhabitants of a town, declare a road not to be for their convenience, when by the record the very contrary appears. And we are further satisfied with this answer to the objection, on considering that the town may entertain an application for the discontinuance of a road found to be inconvenient, and, whenever a majority of the inhabitants see fit, may discontinue it; a right of control being placed in the Court of Sessions, upon application by any person aggrieved by such discontinuance.

[ * 15 ] *It has been argued that towns, under color of establishing roads for their own convenience, may, in fact, assume to themselves the power of determining the public highways, which by the legislature has been committed to the Court of Sessions.

But there is little danger of towns burdening themselves with the expense of making, and of keeping in repair, more roads than are convenient to the inhabitants; and if they should, the Court of Sessions will always take care, upon application, to appoint a committee or summon a jury, who will discontinue any road found to be established by imposition, or even through misapprehension of the true interests of any town in which it has been laid out.

Another objection is, that, admitting the location of the road to be correct, and the subsequent approbation by the town regular, yet that the defendants had no right to enter upon and make the road at the time complained of, because the statute allows a year for the aggrieved party to apply to the Court of Sessions for a jury ; and that until that time had elapsed, the way could not be considered as established, it being liable to be discontinued on such application.

But we find nothing in the statute to support the objection ; and however just and convenient such a provision might be, we have not the power to create restrictions where the law is silent about them. The words of the statute are, that no private way thus laid out shall be established as such, until the same has been reported to the town, at some public meeting of the inhabitants thereof regularly notified and warned, and by them approved and allowed.” — Now, it would seem to be an irresistible implication, that when these proceedings have taken place, which are thus prescribed by law, and the town has approved, the road as laid out by the selectmen is established. If so, the surveyors, or selectmen acting as such, cannot be trespassers in making such road passable, although the year, during which an application quasi an appeal may be made, has not elapsed.

*That this is the true construction of the statute, may [ * 16 ] be further gathered from subsequent legislative provisions, where care is taken to prevent any act upon the ground laid out as a road, in consequence of such laying out, for a reasonable time. Thus, in the statute of 1796, c. 58, § 6, it is provided that a reasonable time shall be allowed for any town, district, or plantation, through which a public highway shall have been laid out and approved, to make the same passable, safe, and convenient. This is an indulgence to the corporations, who are obliged to maintain the -oads. — And in the statute 1802, c. 135, § 4, time is given to the owner of lands, when a committee or jury shall assess damages occasioned by the laying out of such road, to take off the wood, timber, or trees standing thereon ; and even in this case the surveyor may enter, and fell the trees, and make the road ; and the only right reserved to the owner is that of carrying oft’ the wood or limber.

If it should appear in any case, when a road is laid out by the selectmen through the ground of any person, that he notified them, or the town, before the road should be begun to be made, that he intended to make application to the court having jurisdiction of the subject, and to pray for a discontinuance of the road, and he should immediately make such application, and pending the same, the sur veyor should enter, and begin to make the road, we are not prepared to say that, upon application to this Court, some process would not issue to stay the proceedings of the surveyor until the question should be decided. But that not being done in the present case, we cannot consider the defendants as trespassers for executing the orders of the town, in making the road, which had been duly established, notwithstanding the party now complaining had at the time a right to apply to the Court for a discontinuance of the road.

And we are confident that the general usage in the commonwealth has been to proceed in making a road, which has been [ * 17 ] thus laid out and approved, during the year, in * which the right of application for a discontinuance existed. — Whether, if a committee or jury should in fact discontinue the road after it had been made, the aggrieved party would not have a remedy against the town, or its servants, for the expense of restoring the land to its former state, and the intermediate injury sustained, need not be decided in this action.

The last objection we are called upon to attend to is, that the meeting of the inhabitants, at which the vote was passed, approving the doings of the selectmen and establishing the road, was not duly warned or regularly held ; —because it is alleged that the meeting was called for two distinct purposes by the same warrant, and that the qualifications of the voters upon the two subjects were different; so that it cannot now be ascertained that some persons, who were not qualified to act generally in town affairs, did not in fact vote in the acceptance of this road.

The facts, as they appear by the copy of the record of the proceedings of the town in the case, are that, on the 18th of April, 1808, a warrant was issued by the selectmen to the constables of the town, to notify and warn all the male inhabitants of the town, being twenty-one years of age, and residents in the town for the space of one year next preceding, having a freehold estate within the town of the annual income of three pounds, or any estate of the value of sixty pounds; also all persons qualified to vote in town affairs, to meet on the second day of May for the purpose of choosing their representatives ; and in the second article to hear and act upon the report of the selectmen on the petition of El bridge Gerry and others for the road in question.

It appears that the meeting was opened by the selectmen, and that they presided until the town had acted on the first article; and then that the town proceeded to the choice of a moderator, and passed upon the second article, and upon the other business for which the meeting was called ; so that two distinct meet- [ * 18 ] ings were in fact held, and * a distinct record was kept of each. And it also appears by the certificate of the town clerk in the case, that upon examining the records of the town for fifty years past, it appears, with one or two exceptions, that all the meetings, although several in their nature, if held on the same day, have been called by one and the same warrant.

It has not been shown that, in the meeting for the approbation of the road, any persons voted who were not qualified ; and it ought to be presumed, nothing to the contrary appearing, that the different classes of voters knew their own privileges, and that under the control of the moderator, whose duty it was to refuse illegal votes, and the inspection of other officers of the town, the meeting was fairly conducted, and that no unqualified person did in fact interfere. Therefore, although we are satisfied that it would conduce more to the order and regularity of town meetings, and the distinctness of records, that a warrant should issue for each distinct meeting, yet we do not think ourselves at liberty to disturb an error of so long standing, when no practical mischief appears to have resulted from it.

Ward and Bigelow for the plaintiff.

G. Blake and Jackson for the defendants.

We are therefore of opinion, that no sufficient objection has been shown to the justification set forth by the defendants in their brief statement, and that judgment ought to be entered for them upon the verdict.  