
    William E. Healey vs. Inhabitants of Newton.
    Middlesex.
    January 18. — 21, 1876.
    Colt & Endicott, JJ., absent.
    The posting by the selectmen of a town of a notice of their intention to lay out a town way, as required by the Gen. Sts. c. 43, § 61, is a sufficient notice under that section to the owner of the land taken, though a resident of the town, if such ownership be not known to the selectmen.
    Tort for breaking and entering the plaintiff’s close, removing the soil, and laying out a highway across it, by the selectmen of the defendant town. The case was submitted to the Superior Court, and to this court on appeal, on agreed facts in substance as follows:
    On October 1,1870, the selectmen of Newton issued the proper notice of their intention to lay out the way over the land in question, and a meeting was appointed to be held on the premises on October 17, 1870, and a notice was posted in conformity with the Gen. Sts. c. 43, § 61, more than seven days before this meeting At the time of this notice the record title of the land had, since April 6, 1869, stood in the name of Joel M. Holden, who held it for one Dennison and one William Claflin, under an agreement to transfer it to them or to others, upon their request. The land in 1870, and prior to that time, was taxed to Holden, who paid the tax bills, and was repaid by Dennison and Claflin. No personal or written notice was given to Holden of the laying out of the way, and he was not recognized as owner of the land in any way by the selectmen, or known by them as such, although he was a well known resident of the town. They gave notice to Dennison and Claflin, supposing them to be the owners of the land, more than seven days before the meeting, at which Dennison was present and advocated the laying out of the way. Holden had not authorized Dennison in any way to act for him in relation to the land. On February 11,1871, at a meeting adjourned from October 17, 1870, the selectmen staked out the way, and on February 17 made and filed in the town clerk’s office a report' of their doings. On March 4, 1871, Holden, at the written request of Dennison and Claflin, conveyed the land in question to the plaintiff. On April 3, 1871, the town, at a legal meeting, accepted the selectmen’s report, and subsequently the selectmen, acting as the surveyors of highways, entered upon the land and constructed the highway across it.
    Putnam, J., ordered judgment for the defendant upon the foregoing facts; and the plaintiff appealed.
    
      I. D. Van Duzee, for the plaintiff.
    
      C. Robinson, Jr., for the defendant.
   By the Court.

If Dennison and Claflin were the authorized agents of Holden, notice to him might be served on them; if :hey were not, then, Holden not being known to the selectmen as owner of the land, the notice might be served by posting. Gen. Sts. c. 43, § 61. In either alternative, therefore, there was sufficient notice of the laying out of the way; and this fact, being conclusive in favor of the defendant, renders it unnecessary to consider the other grounds of defence.

Judgment for the defendant affirmed.  