
    The Inhabitants of Braintree vs. The County Commissioners of Norfolk.
    County commissioners, in laying out a turnpike as a highway, have no power to require a town to tend the draw in a bridge over a navigable river and to keep lamps lighted thereon, in the same manner as the turnpike corporation were required by their charter to do ; and if the commissioners, as a part of such laying out, require this of the town, the whole laying out is void, and their proceed ings will be set aside on certiorari.
    
    This was a petition for a writ of certiorari, in which the petitioners alleged that the county commissioners for this county, at their meeting in June, 1851, adjudged that common convenience and necessity required the whole of the Braintree and Weymouth turnpike, in the towns of Braintree, Quincy and Weymouth, to be laid out as a public highway; that on the 15th of August, 1851, they located the turnpike as a oublic highway through the towns of Braintree, Quincy and Weymouth, by certain metes and bounds, particularly set forth in the record of the commissioners; that the respondents had ordered the petitioners to construct so much of the turnpike as lay within the town of Braintree as a public highway in the manner specified by the commissioners, within ten months from the date of "the commissioners’ return; that the commissioners had located a portion of the turnpike as a public highway in Braintree over a certain large and navigable river, where the tide ebbs and flows, and where vessels were accustomed to pass, called Lon Works river, and had ordered a bridge over the river to be put in safe repair,, and maintained by the petitioners; and also that the petitioners should maintain a draw in the bridge, and keep an agent there to tend the same, and keep lamps thereon, lighted in the same way and manner, as was provided in the act incorporating the turnpike corporation, to be done by the corporation; that the bridge is a great injury to the town of Braintree, and the maintaining of the same would be a grievous burden, and that the petitioners were informed and believed that the commissioners had no jurisdiction or authority in law to locate the turnpike as a public highway over navigable waters as above stated, nor to impose upon the town of Braintree any of the duties or liabilities of the turnpike corporation, as to maintaining a drawbridge, or a draw in the bridge over Iron Works river; and that by reason of such erroneous and wrongful proceedings the petitioners had been greatly injured.
    The record of the laying out of the turnpike as a highway by the commissioners, after particularly stating the metes and bounds thereof, proceeds as follows: “ Said towns of Weymouth, Braintree and Quincy are respectively required, within ten months from the date of this return, to cause the travel path of said highway in each of said towns to be constructed at least twenty-three feet in width in the clear, and exclusive of side gutter, crowning not less than nine inches, and to be well and evenly gravelled, no rocks or large stones to be left within eight inches "of the surface of the travel path; and, with the exception of Shaw’s hill, and Tufts’s hill so called, in Weymouth, and the hill near the house of Minott B. Thayer, Esq., in Braintree, all hills are to be so lowered, and the valleys adjoining each so filled, as to have no ascent or descent in said travel path of more than three degrees from a horizontal level. Substantial side railings are to be erected and maintained on all bridges and embankments of the height of thirty inches or more. The bridge and the draw in the bridge over the Iron Works river, so called, in Braintree, to be put and kept in safe repair by said town, and an agent employed to tend the same, and to keep lamps thereon lighted, in the same way and manner as is provided in the act incorporating said Braintree and Weymouth turnpike corportion, passed March 4, 1803.” (St. 1802, c. 102.) Then followed the assessment of damages.
    
      C. T. Russell, for the petitioners.
    
      J. J. Clarke and F. A. Kingsbury, for the respondents.
   Fletcher, J.

It appears by the record of the laying out of the road, in this case, that the town of Braintree is required by the commissioners, as a part of the laying out, to employ an agent to tend the draw in the bridge over the Iron Works river, so called, in Braintree, and to keep lamps therein lighted, in the same way and manner as is provided in the act incorporating the Braintree and Weymouth turnpike corporation.

The commissioners surely had no authority to impose this burden on the town. Towns cannot be required to do any more, in regard to roads, than they are required by statute to do. Then- duties, in this respect, are wholly statutory, and there certainly is no statute requiring them to tend a draw in a bridge over a navigable river. A town may be required to make a road; and every town is obliged to keep the highways within its bounds safe and convenient for travellers. All the duties of towns, in regard to roads, relate to the travel along the highway; but tending the draw in this bridge was not for the benefit of the travel on the road, but wholly for the convenience of the navigation of the river. The law imposes no such burden on a town for the benefit of navigation, and no such burden can be lawfully imposed by the commissioners.

The laying out of the whole road, being one entire act, and the part imposing on the town of Braintree the duty of tending the draw in the bridge being unlawful, and being a material part, which cannot be separated from the rest, the whole laying out is invalid.

It is not necessary to consider the other questions raised in the case. Writ of certiorari to issue. 
      
       The Chief Justice did not sit in this case.
     