Commonwealth v. Inhabitants of Western

18 Mass. 136

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1822
• Status: Published

Opinion

The cause was submitted without argument, and, at the April term 1823, it was observed by the Court, that the road, being discontinued, ceased to be chargeable to the town, and that it belonged to the Court of Sessions to lay it out anew, or establish a different road, as they should see fit.¹

1 But where a turnpike corporation have ceased for several years to demand toll, and a town way is laid out over the turnpike road, and accepted by the town, the town is indictable for not keeping the road in repair. Commonwealth v. Petersham, 4 Pick. 119. An action of assumpsit will not lie by a town against a turnpike corporation, to recover expenses incurred in keeping in repair a part of the turnpike road which was laid out over an ancient" county or town road, on the ground of an implied promise. Roxbury v. Worcester Turn. Corp. 2 Pick. 41. If a turnpike road is laid out over an old county or town road, and the turnpike corporation receive toll for the road so laid out, it is conclusive evidence of their being bound to keep it in repair, and they are not released from their obligation, so far as it regards the public, by an agreement of the town, in which the road lies, to keep it in repair. Commonwealth v. Worcester Turn. Corp. 3 Pick. 327; Goshen & Sharon Turn. Co. v. Sears, 7 Conn. R. 93. See also West Boston Bridge v. County Comm. of Middlesex, 10 Pick. 270; State v. Hampton, 2 N. Hamp. R 22; Lyman v. Dorr, 1 Aikens’s R. 224.