
    Warren R. Holcomb vs. Augustus A. Moore.
    The selectmen of a town have no authority to lay out a private way “ to be used only during the time of sleighing.”
    Tort, to recover damages for trespass guare clausum. It was agreed in the superior court that the selectmen of Montgomery laid out a private way over the plaintiff’s land, the location of which contained this provision: “ The way so laid out to be used only during the time of sleighing.” The defendant after-wards travelled upon said way, as one of the persons for whose benefit it was laid out. Upon these facts, judgment was rendered for the plaintiff, for the agreed sum of one dollar; and the defendant appealed to this court.
    
      H. Fuller, for the plaintiff.
    
      H. B. Stevens, for the defendant.
   Dewey, J.

The right of the selectmen of towns to lay out private ways for the use of individuals, or town ways for the use of the town, is wholly given by statute; and unless their proceedings are authorized by the statute, they are invalid. Gen. Sts. c. 43. We are not aware of any provision for the location of a way for use a portion of the year only; much less a way “to be used only during the time of sleighing.” Such a laying out of a way, being objectionable as a basis for assessing damages, and unwarranted by law, is of no validity, and the owner of the land through which it is located may so treat it.

In case a private or town way has been illegally located by the action of the selectmen, and approved of by the town, no certiorari is necessary to quash the proceedings, but the owner of the land may resort to his action of. trespass against those who enter upon his land and use such way against his consent.

The other questions raised in this case it is unnecessary to consider. Judgment for the plaintiff.  