Inhabitants of Danvers v. Commissioners of Highways

23 Mass. 20

• Court: Massachusetts Supreme Judicial Court
• Decided: November 10, 1827
• Status: Published

Opinion

The opinion of the Court was drawn up in the vacation, by

Parker C. J.

A rule to show cause having issued previous to the last term, on which the commissioners made a return, showing their reasons for not proceeding to the estimate of damages due to individual owners of land through which the several roads were laid out, the chief reason being that the subject matter had been acted upon under authority of the Court of Sessions, before the passing of the statute which transferred the jurisdiction over highways to the commissioners, the return was adjudged insufficient, because by St. 1825, c. 171, § 5, it is enacted, that the several counties shall pay the damages sustained by any person or corporation in their real estate by laying out, &c. any highway, and in the same section it is provided, that all roads, laid out but not worked at the time this act takes effect, shall be subjected to the supervision and review of the commissioners, and the commissioners shall have all the powers, and the counties shall be subjected to all the liabilities, in reference to such roads, as are provided for new roads by this act.

It is stated in the petition, and not contradicted in the return of the commissioners, that the road mentioned in the petition, though laid out before the passing of that statute, was not worked. So that the jurisdiction of the Court ol Sessions over it was transferred to the commissioners, and it became their duty, in order that the damages might be paid by the county, as is required by the statute, to estimate the damages anew, and certify the same, as is prescribed. The statute above referred to having been repealed, and the powers of the commissioners having been transferred to a new tribunal not yet constituted, it became necessary to ascertain whether there was any provision for cases pending under the repealed statute ; and we find there is the most full and explicit provision for a continuance of authority in the commissioners appointed under the repealed statute, in regard to all cases relating to roads which had not been finally and conclusively acted upon by them. St. 1827, c. 77. We are to treat the com missioners then, in the same manner as if the last statute had not passed ; and they having shown no sufficient cause for neglecting to estimate the damages, a peremptory mandamus must isSue, to enforce the execution of their duty as set forth in the proceedings in this case.¹

1 See Boxford v. County Commissioners of Essex County, 7 Pick. 337 Springfield v. County Commissioners of Hampden, 10 Pick. 59.