
    Aaron Jones versus The Inhabitants of Lancaster.
    A surveyor of highways has no authority to repair a way at his own expense and then to call upon the town for an indemnity.
    Thus, where a surveyor, before his limits were assigned and without consulting the other surveyors, repaired at his own expense a way, which upon the assignment fell without his limits, it was held that he was without remedy.
    Assumpsit to recover the value of certain work and labor done on a town-way in Lancaster.
    At the trial in the Court of Common Pleas before Howe J it appeared, that the plaintiff was duly chosen and qualified as a surveyor of highways in Lancaster at the annual March meeting in 1824; that in March or April of the same year, and previously to the repairing of the way, the usual amount of money for the repair of highways in the town was duly raised and assessed, but the highway tax list was not delivered to the plaintiff, nor his limits assigned, until the 19th of May; that on the 27th of April, the town-way was out of repair in a dangerous state ; that notice in writing had been given to the plaintiff as a surveyor of highways, of the condition of the way, and a request made by some of the inhabitants that he would repair it, and that on the 27th and 28th of April it was repairer, by the plaintiff, no other surveyor of highways (of which there were several in the town) being consulted upon the subject; that upon the assignment of limits afterwards by the assessors, the way repaired was not included in the plaintiff’s limits, although it had for several preceding years belonged to the district where he lived, and had before that time been a part of the district which was assigned, to him; that before the repairs were made, the plaintiff applied to two of the three selectmen of the town respecting the same ; that one of them advised that the plaintiff should call out certain of the inhabitants to repair the way, and that such inhabitants should be allowed therefor in their highway taxes ; and that the other, who was consulted at a different time, directed the plaintiff not to repair the way at the expense of the town, and stated that if it was necessary to repair, he would do it himself.
    
      Oct. 4th.
    
    Upon this evidence the judge directed a nonsuit, and thereupon the plaintiff filed his exceptions.
    Kendall, in support of the exceptions,
    admitted that the case did not come within the 4th or 8th section of St. 1786, c. 81, but he contended that there was an implied promise to indemnify. the plaintiff, arising out of the legal obligation which is imposed on the town by the 1st section, to keep the way in repair. The case of Callender v. Marsh, 1 Pick. 426, shows that the power of surveyors of highways does not depend on the • limits being assigned ; and the same may be said of their duties. It is indeed there intimated, that until such assignment they must act together, but the case did not require the decision of that point. No joint powers are given to surveyors, and it is manifest from the whole statute, that they are to act separately. See § 2, 4, 8, 10, 11 ; also St. 1796, c. 58. If no assignment is made by the assessors, any one of the surveyors may receive the highway tax list of all persons in the town, and may give notice of the times and places for laboring on the highways, and any person, who shall agreeably to such notice work out his tax, will be justified in refusing to comply with a subsequent requisition for the same tax. So too if no tax is assessed and no limits assigned by the assessors, the surveyors may agree among themselves on their respective limits and make the necessary repairs. There is alwáys by law a period in which there may be no limits assigned, as the surveyors are chosen at the annual meeting in March or April, and the assignment may be made at any time before the first day of May. If all the surveyors must be consulted, a road cannot be repaired, however defective it may be, until a majority of them determine that the repairs shall be made ; and yet each surveyor is liable for the deficiency. Making the repairs was necessary for the plaintiff’s protection, so that it was not a voluntary courtesy, as in the case of Roxbury v. Worcester Turnp. Corp. 2 Pick. 41; [see 2d edit. 44, n. 1 ;] and the consent of the other surveyors, who were equally interested, may be presumed. It may be said the consent of the selectmen was wanting ; but if it is admitted that with their consent one surveyor might have made the repairs and have claimed indemnity, then we say that the necessity of such consent was dispensed with by the urgency of the case, the public safety demanding that the repairs should be made immediately.
    
      April term 1827.
    Stedman, contra,
    said, that the plaintiff was a statute officer, and must in every thing pursue the provisions of the statute. As a surveyor, he had no right to charge the town in this manner. He had no duties to perform, and was not liable for any deficiency in the ways, until his limits were assigned. Wood v. Waterville, 5 Mass. R. 294. But if he might have acted before the assignment, he ought to have consulted with the other surveyors. Callender v. Marsh, 1 Pick. 426. It is said he might repair, because he, with the other survey ors, was liable for any deficiency in the way ; for a similar reason then, the town being subject to an indictment for such deficiency, any inhabitant might make repairs and claim indemnity from the town.
   Parker C. J.

delivered the opinion of the Court. If the factd reported in the bill of exceptions present a whole view of the transaction, it seems an ungracious thing on the part °f the town to refuse to reimburse the plaintiff for his expenditure on their behalf; but as they put themselves upon the law, for which they may have better reasons than we can discern from the bill of exceptions, we must decide according to the strict rights of the parties as they exist by statute.

It appears that the limits for the surveyors had not been assigned, so that the particular piece of road in question did not fall within the care of the plaintiff; neither did he exercise his authority under his former appointment according to the statute. It was the intention of the legislature, that the inhabitants of towns should have the right to discharge this important duty of keeping the roads in repair, by their labor or the use of their utensils, so as to be relieved, from paying the tax in money. This design is apparent in various provisions of St. 1786, c. 81. By the 4th section, where the sum appropriated for the repairs of highways, in the limits of any surveyor, shall prove insufficient for the purpose, he is, with the consent of the selectmen, to employ the inhabitants to make up the deficiency, and the persons thus employed shall be equitably paid out of the town treasury. By the 8th section, if the town neglects to vote a sufficient sum, or otherwise to provide for the repairs, the surveyor is to assess a sufficient portion of work and labor on the persons in his limits, who shall still perform the duty required in labor, if they see fit. The case before us does not come within either of the sections cited, because it does not appear that there was any deficiency in the highway tax for the preceding year, nor was there any neglect of the town for the current year. Under the 8th section however it is conceived, that as the town had not provided means for repairing this road, the surveyor might, supposing his authority within the limits before appointed to have continued until there was a new assignment, have proceeded, as was advised by one of the selectmen, to apportion the work upon the inhabitants within his limits. But there seems to be in no part of the statute any authority for mm to malee the repairs at his own expense and then to call on the town ; and it would be dangerous to uphold town officers in assuming any authority beyond what the statutes give

them. Regretting therefore as we do the loss which the plaintiff has incurred, we do not however think ourselves justified in supporting his claim.

It is said it was the duty of this town to,have repaired this road | that it was liable to indictment for the neglect, as well as to an action by any one who might have been injured thereby; and that for these reasons it is answerable to the plaintiff, who stepped in to save it from these consequences : but the same reasons would, justify any individual of the town, or any stranger, as well as a surveyor ; who, beyond the duty imposed on him by the statute, has no more authority than the other inhabitants.

Judgment affirmed. 
      
       As to the mode of assigning limits for the surveyors, see Be vised Stat e. 25, § 7.
     
      
       See Loiter v. Brookline, 13 Pick. 349.
     