This-case,-with the arguments of counsel, is sufficiently stated in the opinion of the Court, which was delivered by
Parris J.
This is an application for a certiorari to the county commissioners of this county, to send up the record of their doings on the petition of William Merrill and others, and also on the application of Orlando Merrill. Certiorari not being a writ which can be claimed as of right, hut to be granted at the discretion of the Court, we have usually gone somewhat at large into an examination of the merits of the application, before granting the writ; and if, on such examination, it is made to appear that the proceedings have been substantially correct; that the party complaining, and all others interested, have had seasonable opportunity to be heard, and in fact that no injustice has been done, —'the writ has been usually withheld.
On looking into the proceedings of the county commissioners', so far as they have been spread before us, we do not perceive that the furtherance of justice calls for the action of this Court,, or that if we should grant the writ, the town of Lisbon would be ultimately relieved from the obligation of opening and making the road, petitioned for by William Merrill and others, or from paying such damages as may, in consequence thereof, be sustained [211]*211by the said Orlando Merrill. It is true, that if found to be incorrect, wo might quash the proceedings thus far, but it by no means follows, that all proceedings relative to opening said road, would thereupon cease.
The county commissioners have already, on full hearing of the town and all other parties interested, adjudged the road to be of common convenience and necessity to the inhabitants of said town, and although the selectmen might now refuse to- lay it out again, in case all previous proceedings should be quashed, still the county commissioners might, and probably would do it, under the 10th sec. of stat. ch. 118 — which provides a remedy in cases of unreasonable delay or refusal by the selectmen.
By the papers before us it does appear, that the inhabitants of the town of Lisbon have had seasonable notice of every application, both in relation to laying out the road and to the assessment of damages, and have been fully heard at every stage of the proceedings.
Upon these grounds, therefore, according to the usual practice of this Court, we should be inclined to deny the writ.
But, as the parties have intimated a desire that the Court would give an opinion upon the several points raised in the argument, we proceed to the examination, under an assurance that the effect of our opinion will be to suppress further litigation upon this subject between the parties.
For the town it is objected, that the road laid out is not such a road as the county commissioners had authority to accept and approve, under the 11 ih sec. of stat. ch. 118. By the term private way,'in the 9th and llth sections of the statute, is not meant, exclusively, a way laid out for the benefit of one or more individuals. This is apparent from the phraseology of the 10th section, which provides, that if the selectmen shall unreasonably delay or refuse to lay out any such private way, the Court of Sessions may cause the same to bo laid out by a committee, which committee shall estimate the damages occasioned thereby, the damages to be paid by the town, if the road be of general benefit. From this phraseology it is manifest, that the Court of Sessions had, and as their successors, the county commissioners have power, under the 10th sec., to lay out a way for the general [212]*212benefit of the town, when the selectmen unreasonably refuse to do it; and have also power, under the lli7i sec., to approve and allow of such way laid out by the selectmen, when the town unreasonably delay or refuse to approve and allow of the same. It is immaterial whether it be called town way or private way. Although denominated a private way it may be for the general benefit of the town, and as such the town will be answerable for all damages occasioned by the laying out.
By the record it abundantly appears, that the county commissioners laid out no new road, but merely exercised their authority under th.e lltA sec., by accepting and approving the road, laid out by the selectmen, and ordering the same to he recorded in the town book. It then became a town or private way, legally laid out and established, and the commissioners adjudged it to be of common convenience and necessity to the inhabitants of the town.
We think that the commissioners, in no wise exceeded the authority conferred on them by statute.
The next objection, on the part of the town is, that the county commissioners did not make and cause to be recorded an accurate plan and description of said highway, and stat. ch. 500, sec. 5, is relied upon as requiring this to be done.
That section, in no case, requires a plan and description. It provides that the county commissioners “ shall make a correct return of their doings under their hands, with an accurate plan or description of said highway, or common road, so'laid out, altered or discontinued. A plan or description either, would answer this requirement, if it applied to such a case as the one under consideration. But the provision referred to, requiring a plan, has no application to this case. It relates wholly to county roads.
It is further objected by the town, that the application of Orlando Merrill for a jury to estimate his damages, was not entered within the time provided by siat. ch. 118, sec. I.
By that section, any person aggrieved in the original assessment of damages, may apply to the Court of Sessions, “ provided such application be made to the said Court, that shall be held in the same county, next after the acceptance of the return ; and a jury may thereupon be appointed, &sc. The accept[213]*213anee of the return, which was in this case the acceptance and approval of the road by the county commissioners, was at the meeting of said commissioners holden on the third day of September, 1832, and the application for a jury to estimate damages was not until the meeting of the county commissioners on the second day of September, 1833, one meeting or more of said commissioners, having intervened between the acceptance of the road, and the preferring the application for a jury. It follows, therefore, that under the provisions of ch. 118, sec. 1, the application was not in season. But so much of this section as requires the application for a jury to be made at the court that shall he held next after the acceptance of the return, lias been repealed by the provisions of a subsequent statute upon the same subject, By stat. ch. 500, sec. 5, it is provided that “ any person or persons, corporation or corporations, aggrieved by the decision of said county commissioners in estimating damages, may have the same remedies and processes upon application to the county commissioners, at any regular session within one year next after such return shall have been recorded, as they now have upon application to the Court of Sessions; and by the 10th sec. all acts and parts of acts inconsistent with the provisions of this act, are repealed. The 5th sec. of stat. ch.
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This-case,-with the arguments of counsel, is sufficiently stated in the opinion of the Court, which was delivered by
Parris J.
This is an application for a certiorari to the county commissioners of this county, to send up the record of their doings on the petition of William Merrill and others, and also on the application of Orlando Merrill. Certiorari not being a writ which can be claimed as of right, hut to be granted at the discretion of the Court, we have usually gone somewhat at large into an examination of the merits of the application, before granting the writ; and if, on such examination, it is made to appear that the proceedings have been substantially correct; that the party complaining, and all others interested, have had seasonable opportunity to be heard, and in fact that no injustice has been done, —'the writ has been usually withheld.
On looking into the proceedings of the county commissioners', so far as they have been spread before us, we do not perceive that the furtherance of justice calls for the action of this Court,, or that if we should grant the writ, the town of Lisbon would be ultimately relieved from the obligation of opening and making the road, petitioned for by William Merrill and others, or from paying such damages as may, in consequence thereof, be sustained [211]*211by the said Orlando Merrill. It is true, that if found to be incorrect, wo might quash the proceedings thus far, but it by no means follows, that all proceedings relative to opening said road, would thereupon cease.
The county commissioners have already, on full hearing of the town and all other parties interested, adjudged the road to be of common convenience and necessity to the inhabitants of said town, and although the selectmen might now refuse to- lay it out again, in case all previous proceedings should be quashed, still the county commissioners might, and probably would do it, under the 10th sec. of stat. ch. 118 — which provides a remedy in cases of unreasonable delay or refusal by the selectmen.
By the papers before us it does appear, that the inhabitants of the town of Lisbon have had seasonable notice of every application, both in relation to laying out the road and to the assessment of damages, and have been fully heard at every stage of the proceedings.
Upon these grounds, therefore, according to the usual practice of this Court, we should be inclined to deny the writ.
But, as the parties have intimated a desire that the Court would give an opinion upon the several points raised in the argument, we proceed to the examination, under an assurance that the effect of our opinion will be to suppress further litigation upon this subject between the parties.
For the town it is objected, that the road laid out is not such a road as the county commissioners had authority to accept and approve, under the 11 ih sec. of stat. ch. 118. By the term private way,'in the 9th and llth sections of the statute, is not meant, exclusively, a way laid out for the benefit of one or more individuals. This is apparent from the phraseology of the 10th section, which provides, that if the selectmen shall unreasonably delay or refuse to lay out any such private way, the Court of Sessions may cause the same to bo laid out by a committee, which committee shall estimate the damages occasioned thereby, the damages to be paid by the town, if the road be of general benefit. From this phraseology it is manifest, that the Court of Sessions had, and as their successors, the county commissioners have power, under the 10th sec., to lay out a way for the general [212]*212benefit of the town, when the selectmen unreasonably refuse to do it; and have also power, under the lli7i sec., to approve and allow of such way laid out by the selectmen, when the town unreasonably delay or refuse to approve and allow of the same. It is immaterial whether it be called town way or private way. Although denominated a private way it may be for the general benefit of the town, and as such the town will be answerable for all damages occasioned by the laying out.
By the record it abundantly appears, that the county commissioners laid out no new road, but merely exercised their authority under th.e lltA sec., by accepting and approving the road, laid out by the selectmen, and ordering the same to he recorded in the town book. It then became a town or private way, legally laid out and established, and the commissioners adjudged it to be of common convenience and necessity to the inhabitants of the town.
We think that the commissioners, in no wise exceeded the authority conferred on them by statute.
The next objection, on the part of the town is, that the county commissioners did not make and cause to be recorded an accurate plan and description of said highway, and stat. ch. 500, sec. 5, is relied upon as requiring this to be done.
That section, in no case, requires a plan and description. It provides that the county commissioners “ shall make a correct return of their doings under their hands, with an accurate plan or description of said highway, or common road, so'laid out, altered or discontinued. A plan or description either, would answer this requirement, if it applied to such a case as the one under consideration. But the provision referred to, requiring a plan, has no application to this case. It relates wholly to county roads.
It is further objected by the town, that the application of Orlando Merrill for a jury to estimate his damages, was not entered within the time provided by siat. ch. 118, sec. I.
By that section, any person aggrieved in the original assessment of damages, may apply to the Court of Sessions, “ provided such application be made to the said Court, that shall be held in the same county, next after the acceptance of the return ; and a jury may thereupon be appointed, &sc. The accept[213]*213anee of the return, which was in this case the acceptance and approval of the road by the county commissioners, was at the meeting of said commissioners holden on the third day of September, 1832, and the application for a jury to estimate damages was not until the meeting of the county commissioners on the second day of September, 1833, one meeting or more of said commissioners, having intervened between the acceptance of the road, and the preferring the application for a jury. It follows, therefore, that under the provisions of ch. 118, sec. 1, the application was not in season. But so much of this section as requires the application for a jury to be made at the court that shall he held next after the acceptance of the return, lias been repealed by the provisions of a subsequent statute upon the same subject, By stat. ch. 500, sec. 5, it is provided that “ any person or persons, corporation or corporations, aggrieved by the decision of said county commissioners in estimating damages, may have the same remedies and processes upon application to the county commissioners, at any regular session within one year next after such return shall have been recorded, as they now have upon application to the Court of Sessions; and by the 10th sec. all acts and parts of acts inconsistent with the provisions of this act, are repealed. The 5th sec. of stat. ch. 500, was repealed by the Act in relation to highways passed March 9, 1832, but the clause above extracted from said 5th sec. is reenacted in totidem verbis. Such was the law upon this subject in September 1832, when the county commissioners accepted and approved of the road; and in September, 1833, when Orlando Merrill applied for a jury to estimate his damages; and as that application was made within one year next after the return establishing the road liad been recorded, we think the requirements of law were complied with in that respect.
The last objection urged by the town against the record and doings of the county commissioners is, that said commissioners awarded costs against the town. It is urged that if the petitioner be entitled to costs they should be paid by the county, because the county commissioners erred in assessing the damages, the jury having increased them from $50 to $162. An argument, substantially like this in principle, was urged upon us, unsuccessfully, [214]*214in Emerson v. the county of Washington, 9 Greenl. 88. We cannot consider the county commissioners so far the agents of the county, as to render the latter liable for all errors in judgment, or mistakes in law which they may fall into. They constituted the proper tribunal to estimate the damages between these parties, <viz. the town on the one part, and the owner of the land on the mother, subject to the right of appeal to a jury, if the owner of the -land should be dissatisfied. The damages have been finally determined in the legal mode. The delay and expense incurred, have been wholly attributable to the opposition and refusal of the town. If the report and doings of the Selectmen in laying out the road had been accepted by the town, and the Selectmen had agreed with the owner of the land, as to damages, none of the proceedings, which have been had before the county commissioners, or the jury summoned by their order, would have been required. We think that the true and just construction of stat. ch. 118, and ch. 399, requires that the town, in this case, should be answerable for costs as well as damages.
Moody, for the petitioners.
Everett, for the respondents.