
    West Boston Bridge, Petitioners, &c. versus The County Commissioners of Middlesex.
    Under St. 1825, c. 171, the commissioners of highways had no authority to lay out a highway longitudinally over a turnpike road.
    The commissioners of highways having, upon an application for a highway, adjudged part of the way to be for the common convenience, and made return of their proceedings to the court of sessions, where the same were recorded, it was held, that the commissioners were fundi officio as to such application, and that they could not subsequently, without a new application, proceed .to lay out another part of the way prayed for. [See p. 272, note.]
    This was a petition for a writ of certiorari to the county commissioners, as successors of the commissioners of highways.
    It was alleged, that at a meeting of the commissioners of highways on October 23d, 1827, they proceeded to act upon a petition of Atherton H. Stevens and others, praying for a highway in Cambridge and Charlestown from Davenport’s tavern to Canal bridge, on which petition the commissioners had be fore that time adjudicated and acted, and laid out a part of the highway therein prayed for, and made a return thereof to the court of sessions, where the same was recorded : at which meeting these petitioners, as lessees of the Middlesex Turnpike Corporation, appeared and opposed the laying out of the remainder of the highway prayed for : nevertheless the commissioners then laid out and established a part of the highway - prayed for, from the junction of the turnpike near Davenport’s tavern, along, over and upon the turnpike, thirty-one rods and a half: and the commissioners awarded to these petitioners, as persons over whose land the highway was laid out, as damages sustained by them by reason of the laying out of the highway, the sum of $ 200 : all which doings of the commissioners were returned to a court of sessions held in January 1828, and were there recorded.
    The petitioners allege that the record and proceedings are illegal and ought to be quashed for several reasons.
    1 • Because the commissioners of highways, having already acted upon the petition of Stevens and others and made a return of their doings thereon to the court of sessions to be there recorded, could not legally proceed further to adjudicate upon and lay out the highway, without a new application therefor.
    2. Because they have laid out and established the highway along, over and upon the turnpike road in part; which they could not legally do.
    3. Because they have awarded nothing to these petitioners, as and • for damages sustained by them in their property and franchise as lessees of the turnpike corporation, but have awarded to them the sum of $ 200 as and for damages sustained by them by reason of the laying out of the highway over their land ; whereas the highway is not laid out over their land, " but they were greatly damnified in their property and franchise as lessees as before mentioned, and a part of the same taken from them by laying out the highway.
    The record referred to, of the proceedings of the commissioners of highways at the meeting held on October 23d, 1827, is in part as follows : — “ On the petition of Atherton H. Stevens and others praying for a new highway in Cambridge and Charlestown from Davenport's tavern to Canal bridge, said commissioners having heretofore adjudged of the common convenience and necessity of a part only of the highway prayed for and now having again given all persons and corporations interested in said petition reasonable notice of the time, place and purpose of said meeting, &c. proceeded to view a part of the proposed route for a new highway, not heretofore adjudicated upon.” The record then states that the highway was laid out partly over the turnpike road, and that the commissioners awarded to certain persons (among whom are these petitioners as lessees of the turnpike corporation) “ over whose lands said highway is laid out, the sums annexed to their names respectively, as damages by them sustained, by reason of the laying out of said highway.”
    
      F. Dexter, for the petitioners.
    
      Jan. 20th. 1830.
    Buttrick, for the respondents,
    cited Commonwealth v. Worcester Turnp. Corp. 3 Pick. 327, to show that a turnpike road may be taken and laid out as a county road, when the public convenience requires it.
    An easement in a road is real estate ; Spear v. Bicknell, 5 Mass. R. 125 ; and if so, the damages are properly awarded.
    
      April term 1830.
   Parker C. J.

afterward drew up the opinion of the Court. Had the commissioners a right to lay out a road upon the turnpike ? We think not. The ground has already been taken and appropriated to public use, and has been paid for by the proprietors of the turnpike. Another highway cannot be laid over it under the general power of laying out highways. It would be to defeat the charter, for if it can be done át all, it may the whole length between gate and gate, and then by a slight deviation the toll may be avoided.

If it should be adjudged necessary to lay out a new highway in such direction as to cross a turnpike, it is not necessary to lay it out upon the turnpike, but only up to the lines of it on each side, for the turnpike being a public highway, travellers will have a right to cross it without any laying out by the commissioners. This road is laid out longitudinally thirty-one rods upon the turnpike. Does the road cease to be a turnpike here and become a common highway ? Who are bound to keep it in repair, the town, in which it may lie, or the proprietors of the turnpike ? If the former, then it is because the franchise is destroyed; which cannot be done, if at all, without compensation. So that whether the franchise be real or personal estate, the proceedings would be void, nothing having been allowed but for land taken.

The commissioners, having acted upon the application for this new road and adjudged it to be for the common convenience to a certain extent, and made return of their proceedings, which were recorded, were functi officio in regard to this new road upon that application. Their further proceedings without aft application are void, as a judgment of a court without a writ would be.

As to laying out a highway over a turnpike, the case ot Commonwealth v. Worcester Turnp. Corp. 3 Pick. 327, is cited. This only proves that a turnpike may be laid over a town road, and this is by virtue of a special grant of the legislature. The town road is laid out under the general laws ; no one has acquired a franchise in it. The legislature has a right at any time to discontinue it and substitute another road.

Certiorari awarded. 
      
       It appears by the case of Commonwealth v. West Boston Bridge, 13 Pica. 196, that this point was not decided.
     