Small v. Pennell

Wells, J.

The plaintiff being in possession of the locus in quo, and claiming title to it by virtue of his deed from Andrew Low, is entitled to maintain this action, unless the justification set up by the defendant can prevail.

The defendant contends, and he offered to prove, that the land upon which the alleged trespass was committed, was a public range way. But the fee in such range ways remains in the original proprietors, unless they have parted with it, and an easement may be acquired over them by ways legally laid out, or by long user. In relation to -the right of the public to their use, they are to be viewed in the same manner as any other lands. The proof offered by the defendant, if received, would constitute no justification, and was therefore properly rejected. Howard v. Hutchinson, 1 Fairf. 335.

The defendant also alleges, as a ground of his defence, that in April, 1846, the county commissioners located a town way over the locus in quo, and that he was employed by the agent of the county commissioners to make the road, and in making it, he did the acts of which complaint is made.

The plaintiff denies the jurisdiction of the commissioners in the case in question, and the legality of then proceedings.

Unless the commissioners had jurisdiction to authorize the commencement of then proceedings, they would be void. A general jurisdiction merely, by law, over the subject matter, is not enough; they can only have it in the particular case in which they are called upon to act, by the existence of those preliminary facts, which confer it upon them. Their doings are ineffectual unless they have power to commence them, and ■ may in such cases be avoided collaterally. But having juris *271 diction, if their subsequent acts are erroneous, they are valid until vacated by certiorari. Baker v. Runnels, 3 Fairf. 235; Goodwin v. Hallowell, ibid, 271; 12 Metc. 208 ; Sumner v. Parker, 7 Mass. 79 ; Haskell v. Haven, 3 Pick. 404 ; Wales v. Willard, 2 Mass. 120 ; Loring v. Bridge, 9 Mass. 124 ; Davol v Davol, 13 Mass. 264 ; Frumpton v. Pettis, 3 Lev. 23; the case of the Marshalsea, 10 Co. 68.

The only inquiry then, which can be considered, is, whether the commissioners had jurisdiction of the case upon which they undertook to act, and if they had not, the defence cannot be sustained.

By stat. c. 25, § 32, it is provided, that “if the selectmen of any town shall unreasonably refuse or neglect to lay out or alter any such town way, &c. when requested in writing, by one or more of the inhabitants, &c. the commissioners, at any meeting, within one year, on application of any of the persons, so requesting, by petition in writing, may cause the said, &c. to be laid out or altered,” &c.

.Tn such cases the commissioners have only an appellate jurisdiction, arising from an application to the selectmen in writing, and an unreasonable refusal or neglect by them to grant it. Then any of the persons, who have applied to the selectmen, may prefer their request, within one year, to the commissioners, by petition in writing. And the record of the commissioners must disclose the facts upon which their jurisdiction is founded, as it appears, was done by the record of the court of sessions mentioned in Goodwin v. Hallowell.

In this case neither the request to the selectmen nor the petition to the commissioners, was made a part of their records. The extracts from their records show that they acted upon “ petition of Robert Starbird & als. petitioners for a town road in Grey.” The contents of the petition not being stated, it cannot be known from the record whether this was the petition to the- selectmen or the commissioners. The allegation in the record, “ that the selectmen of Gray have unreasonably refused and neglected to lay out and locate the way, as set forth in the foregoing petition,” is only one of the *272 requisites necessary to give jurisdiction; it must further appear that some of the persons, requesting the road to be laid out, made their application in •writing to the commissioners, who have no right to act upon the subject unless it is legally brought before them by some of those aggrieved.

It does not appear by the record, as it should, that the application was made to the commissioners within one year from the neglect or refusal of the selectmen.

The parole testimony is offered, not to prove a lost record but as a substitute for the record itself. This is inadmissible. The acts and doings of the commissioners must be manifested by their- records, which, if lost or destroyed, may be proved by parole evidence. But it is not suggested that their records have been lost. There is an omission to record what is essential in order to give validity to their acts.

The grounds of the defendant’s justification failing, the default, which was ordered, must remain.