Davis v. Smith

130 Mass. 113, 1881 Mass. LEXIS 17

• Court: Massachusetts Supreme Judicial Court
• Decided: January 8, 1881
• Status: Published

Opinion

Gray, O. J.

Town ways and private ways laid out under the provisions of our statutes are public ways. Denham v. County Commissioners, 108 Mass. 202. The power conferred upon justices of the peace by the Gen. Sts. c. 46, § 5, to order fences, gates, rails or bars across town ways or private ways to be removed, is no more a judicial power than if it had been vested in the selectmen or in the surveyors of highways, or than is the similar power which any citizen has, under § 4 of the same statute, to remove like obstructions in a county highway. Not being a judicial power, an order of a justice of the peace for the removal of such an obstruction is not in the nature of a judicial warrant, precept or process; the sheriff or his deputy is not required in his official capacity to serve it; and any acts done by the deputy in the execution of such an order are not done by virtue or under color of his office, but are his personal acts, for which the sheriff is not responsible. Gen. Sts. c. 17, §§ 15, 65; c. 122,, § 5. Marshall v. Hosmer, 4 Mass. 60. Knowlton v. Bartlett, 1 Pick. 271. Mansfield v. Sumner, 6 Met. 94. Whether the deputy himself would be liable to an action, upon the facts z stated in the bill of exceptions, cannot be decided in this case, to which he is not a party.

Exceptions overruled.