
    The State in certiorari vs. The Inhabitants of Pownal.
    The Court of Sessions has no original jurisdiction in the laying out of town or private ways; — its jurisdiction in such cases is of an appellate character merely; — and even then is confined to two specified cases, viz. where the Selectmen of a town shall unreasonably delay or refuse to lay out such way, or the town shall unreasonably delay or refuse to approve of the same.
    This unreasonable delay or refusal should always appear of record in the Court of Sessions, as the evidence of jurisdiction. And where it is wanting it will be good cause for quashing the proceedings on certiorari.
    
    In this case the record of the Court of Sessions for this County being brought up on certiorari, it appeared that, on the 1st Tuesday of June, 1828, certain inhabitants of the town of Pownal petitioned said Court to lay out a road in said town. The petition ran thus ; “ The subscribers, inhabitants of the “ town of Pownal are desirous of having the following road “ located in said town, namely, beginning,” &c. &c. “ That “ your petitioners on the 30th of May, A. D. 1828, requested “ in writing of the Selectmen of said Pownal to lay out said “ road and present and report the same to said inhabitants for “their acceptance as bylaw is provided — and j that on the “ 12th instant the said Selectmen, by a majority of them, re- “ fused to lay out said road, and report the same to said town ; “ your petitioners therefore pray that the said road may be “. located and established by the Court as is provided by law.” On this petition, in pursuance of an order of Court, the inhabitants of Poional were duly notified, and by their agent appeared and opposed the prayer of the petition, at which term the Court made the following 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 this application be opened and made by “ said town of Pownal, and the Court appoint Thomas JB. lAt- “ tie, Andrew B. Giddinge, and Robert B. Running a com- “ mittee to locate said town road.”
    
    The committee proceeded to locate the road, and their report was afterwards duly accepted by said Court.
    
      And now Greenleaf and Belcher show for error in said proceedings : —
    1. That they were not predicated on a petition in writing to the Selectmen, which is the foundation of any jurisdiction. Though it is so stated in the present petition, no such request is produced — nor does such fact appear in the adjudication. Commonwealth v. Cambridge, 7 Mass. 158 ; Maine Stat. ch. 118, sec. 10.
    2. That it does not appear what kind of road was prayed for; —■ whether town or private. Craige v. Mellen, 6 Mass. 7.
    3. That it does not appear that the Selectmen unreasonably refused to lay out the road prayed for.
    4. That there was no adjudication that the road was of general benefit.
    
    They also cited the following cases. Lancaster v. Pope &f al. 1 Mass. 86 ; Commonwealth v. Coombs, 2 Mass. 489 ; Commonwealth v. Great Barrington, 6 Mass. 492.
    
      Longfellow, for the petitioners,
    contended that by the proceedings it did appear that the petitioners had applied in writing to the Selectmen to lay out said road —■ it was alleged in the petition, which was sufficient, — also that the Selectmen had refused— and this being followed by the adjudication of the Court, it is to be inferred that it was proved before the Court that tho refusal was unreasonable.
    
    The Court of Sessions adjudged the road to be of common convenience, this is all that the statute requires —■ not necessary to adjudge it to be of “ general benefit.”
   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.  