#### David Fales *et al. versus*Harlous Whiting.

Where a turnpike corporation was created after the enactment of *St**1804, c. 125, defining the general powers and duties of turnpike corporations, it was *held,*that it must either be presumed that the legislature had previously appointed a committee to view the route, or the act of incorporation must be considered as a repeal *pro tanto*of the provision in the general statute requiring such a committee.

Where the report of " a committee appointed by the legislature," signed by three persons, stating that they had laid out a turnpike road, was made to the Court of Sessions, but there was no evidence of the appointment of such committee either by the legislature or the Court of Sessions, and the report was not under their seals, and did not state that notice was given to persons interested, nor through whose lands the road passed, and the same three persons, as part of a committee of five appointed by the Court of Sessions with power only to estimate the damages sustained by individuals through whose lands the road passed, made a report of such damages, it was *held,*that the road did not appear to have been laid out according to law, and that the proceedings were a nullity.

Where a turnpike road has not been lawfully laid out, the acceptance by the Court of Common Pleas of the report of a committee, stating that die road is well made and fixing the place for the toll-gate, will be of no efficacy to establish the road.

If a turnpike road has not been lawfully laid out, the allowance of it by the Common Pleas, and the existence of it as a turnpike road *de facto*for nearly twenty years, give no right to demand toll.

This was an action on the case to recover of the defendant a penalty for forcibly passing the turnpike gate on the Wrentham and Walpole turnpike road, without paying toll. The defendant pleaded the general issue.

At the trial in the Common Pleas, before *Williams*J., it was admitted that the defendant, after the enactment of *St.*1826, c. 116, which gives a right of action to the assignee of the franchise of a corporation, passed the toll-gate, refusing to *232pay toll, and alleging that the plaintiffs had no right to demand or receive toll.

The plaintiffs read in evidence the Statute of 1805, c. 109, establishing the Wrentham and Walpole Turnpike Corporation, which directs that the road shall begin at the meetinghouse in the first parish in Wrentham and shall run as nearly in a straight line to the meetinghouse in Walpole, as a locating committee shall think will best accommodate the public, and that the corporation shall be subject to the provisions of the general turnpike act. *(St.*1804, *c.*125.) Also the *St.*1810, c. 33, allowing the corporation a further time of one year from March 14, 1811, to complete their road.

They also proved a sale of the franchise upon execution, on the 8th of July, 1811, for thirty years, to one Clap, from whom they derived their title by subsequent assignments.

They also offered in evidence a paper signed by Eliphalet Loud, Elijah Crane and Benjamin Randall, dated June 3, 1807, addressed to the Court of Sessions and taken from the files of that Court, which was as follows : — *“*The committee appointed by the legislature of the Commonwealth of Massachu setts to locate the Wrentham and Walpole turnpike road, hav ing attended to that service, report-, that the road begins at Wrentham meetinghouse and runs north about thirty-two degrees east to Walpole meetinghouse nearly on a straight line, and that the same is laid out four rods wide, except in one instance it is but three rods in width, being land of Ichabod Clap.”

Also a petition of the corporation to the Court of Sessions, at September term 1806, *“*to appoint a committee to assess damages to all persons whose lands have been taken by means of the location of said turnpike.” Also the order of the court appointing Loud, Randall and Crane above mentioned, with EbenezerWarren and John Bates, such committee, and directing them to make return of their doings under the hands and seals of the committee or a major part of them, to the Court of Sessions to be held in the county next after they shall have performed the duties assigned to them. Also the report of this committee dated June 3, 1807, under the hands, but not under the seals, of Loud, Crane and Randall, stating that the committee had *233given notice to all persons interested, and that the several persons named in the report had sustained damages in the respective sums set against their names. On this report was the memorandum,— “ Read and accepted June 3, 1807.”

*Oct. 29th*

Also a petition of the owners of the franchise to the Common Pleas, at December term 1811, representing that the road is sufficiently made, and that the petitioners are desirous to erect a gate and receive toll, and praying the court to inquire into the state of the road and to approve of the same, or to pass such order as they may think proper. Also an order of the court, passed at the same term, appointing three persons a committee for the purposes mentioned in the foregoing petition, directing them to report thereon as soon as may be. Also a report of the committee, dated December 20, 1811, “ that they have viewed the road and find it very well made, and of good materials, and convenient for the passenger.” There was no evidence that this report was accepted, or that the court passed any order respecting it.

Also a petition of the plaintiffs to the Common Pleas, at April term 1826, representing that the road is completed and sufficiently made, and praying the court to approve of it,' and to direct in what place the petitioners may erect a gate. Also an order of the court appointing a committee in conformity to the petition, and the report of the committee, that the road is made according to law, and that the gate should be placed near the house óf David Pales ; which report was accepted at the same April term.

It appeared in evidence, that at the time of the seizure and sale of the franchise upon execution, the road was not completed, but was afterward made by the purchaser.

Upon the foregoing evidence the defendant contended, that the supposed turnpike road had never been lawfully laid out; that the supposed toll-gate had never been lawfully erected ; and that the plaintiffs were not entitled to recover. The judge being of this opinion, instructed the jury accordingly, and a verdict was returned for the defendant. Whereupon the plaintiffs filed exceptions.

*Metcalf*supported the exceptions.

The road having been accepted and the gate established by the proper tribunal, this *234action will lie, although some of the requisitions of the act of incorporation may not have been complied with. Suppose the road to be less than four rods wide, or that the corporation did not tender damages to the owners of the land according to St 1807, c. 113, a traveller cannot take advantage of these deviations from the statutes. *Graham*v. Peat, 1 East, 244 ; *Commonwealth*v. *Worcester Turnp. Corp.*3 Pick. 330. There are no conditions precedent to the right of exacting toll, except the allowance of the road by the Common Pleas, and the erection of a toll-board. *St.*1804, c. 125, § 4. Toll is demandable until the gate shall be set open by the authority of that court. § 14.

The evidence is sufficient to show a good title in the plaintiffs, except as against the Commonwealth. The road was laid out in 1806, and in 1811 a gate was erected ; and ever since, toll has been demanded. After *the*lapse of so long a time, all things will be presumed to have been *rite acta.*Bui. N. P. 211 ; 3 Stark. Ev. 1250. In England, after a peaceable possession of a corporate franchise for six years, a *quo warranto*will not be issued upon the application of an individual. 2 Hawk. P. C. (Curwood’s ed.) 366 ; *Rex*v. Bond, 2 T. R. 767. This Court will not grant a *certiorari*for defects. of form after the road is made. *Ex parte*Miller, 4 Mass. R. 565. Why the locating committee call themselves a committee of the legislature, and yet make their report to the Court of Sessions, can be explained only on the supposition of a resolve of the legislature, appointing the committee and authorizing such proceeding, or of a mistake of the committee in regard to the source of their appointment. Three persons only make the report, but *non constat*that five were not appointed, as required by *St.*1786, c. 67. If a committee consists of five, and three make a report without mentioning the other two, error will not lie after twenty years. The *St.*1804, c. 125, § 2, is not imperative that there shall be a committee appointed by the Court of Sessions to lay out a turnpike road. It does not say that such a road may not be laid out in some other manner.

If it does not appear that the road was lawfully laid out, the plaintiffs have produced evidence sufficient to prove that it was *235*established*as a turnpike road, and the burden is on the defendant to show the contrary.

Mann, for the defendant,

contended that the sale on execution was ineffectual, inasmuch as the road was not then finished. *St.*1810, c. 131, § 2. But supposing the plaintiffs to have connected themselves with the corporation so far as regards the right to take toll, they must show that the road was lawfully laid out. *Arundel*v. *M'Culloch,*10 Mass. R. 70; *Commonwealth*v. Charlestown, 1 Pick. 180; *Commonwealth*v. Newbury, 2 Pick. 51 ; *Hinckley*v. Hastings, ibid. 162 ; [2nd ed. 164, note 2 ;] *Roxbury*v. *Worcester Turnp. Corp.*ibid. 41 ; *Commonwealth*v. Low, 3 Pick. 408 ; *Commonwealth*v. *Worcester Turnp. Corp.*ibid. 327. No room is left for presumption in the present case, for the papers which were the basis of all that has been done, are found in the proper office, and they are irregular. It is said that the acceptance of the road by the Common Pleas gives a right to take toll. Such acceptance shows only that the road has been sufficiently made to accommodate the traveller ; it affords no evidence of its having been legally laid out. There should be such a laying out and acceptance as will furnish the traveller with a defence in an action of trespass brought against him by the owner of the soil; otherwise the corporation or their assignee, cannot exact toll. Here the traveller would not be protected, for the road is in one place only three rods wide instead of four. The judgment of the Common Pleas accepting such a road being erroneous in part, may be denied either by plea or upon evidence, since error does not lie in a case of this sort. *Smith*v. *Rice,*11 Mass. R. 514 ; *Davol*v. *Davol,*13 Mass. R. 264 ; *Haskell*v. *Haven,*3 Pick. 404 ; *Davison*v. *Gill,*1 East, 64 ; *Welch*v. *Nash,*8 East, 394.

The statute of 1804, *c.*125, is peremptory, that a turnpike road shall be laid out by a locating committee appointed by the Court of Sessions, and the act of incorporation under which the plaintiffs claim, does not take this road out of the operation of that statute. The defects in these proceedings are numerous and obvious, and are not cured by lapse oí time. *Arundel*v. *M'Culloch,*10 Mass. R. 70 ; *Commonwealth*v. *236Coombs, 2 Mass. R. 489 ; *Commonwealth*v. *Great Barrington,*6 Mass. R. 492 ; *Hinckley*v. *Hastings,*2 Pick. 162.

*Richardson,*in reply,

said it was *the*intention of the legislature, that their own committee should locate the road. I seems that a committee of three persons did make a location, and the only defect in the plaintiff’s title arises from the non-production of the resolve appointing the committee. But as they call themselves in their report, made more than twenty years ago, a committee of the legislature, their regular appointment may be presumed. If a committee of the legislature have laid out the road, and the corporation have paid the owners of the land their damages, every thing has been done that was essential to the location. If there has been any irregularity, the Court would not, after the lapse of so long a time, grant a certiorari, and until the proceedings shall be quashed, the owner of the soil cannot maintain trespass against a traveller ; and if so, the Court will not allow the defendant to go into the proceedings to show an irregularity.

The opinion of the Court was afterward drawn up by

Parker C. J.

The previous appointment of a committee of *the*legislature, is either to be presumed from the act granting the turnpike road, or that act is a repeal *pro tanto*of the provision of *St.*1804, c. 125, [Revised Stat. c. 39, § 1,] re quiring a committee of the legislature.

Did the corporation pursue the requisitions of the 2d section of the statute of 1804, as to the application to the Court of Sessions for a committee for laying out the road, assessing damages, &c. ?

The first committee made a report to the Court of Sessions in January, 1807. There are but three persons on this com mittee. They say they were appointed by the legislature They do not return that they gave any notice, nor do they assess any damages j all which is required by the statute of 1804. There is no record of any such appointment by the Court of Sessions, and there is no evidence that the records of that time have been lost or destroyed. This is wholly insufficient and cannot be considered as a laying out of the road according to the statute.

The foregoing committee made their return on the 3d oí *237«anuary, 1807. On the same day the same three persons returned an estimate of damages, on a warrant to them from the Court of Sessions, granted on a petition of the corporation, and their authority was limited to the assessment of damages.

They do not by the copy of the record appear to have affixed any seals to their names, though this was required by the warrant. Five were appointed, three only acted.

The 2d section of the statute of 1804 [Revised Stat. c. 39, § 2,] requires, that when a turnpike road shall be granted by the legislature, it shall be laid out in the manner described by *St.*1786, c. 67, in relation to the laying out of highways.1 On application to the Court of Sessions, they are to issue a warrant under the seal of the court to five disinterested freeholders, who are to lay out the road and estimate the damages, and make return under their hands and seals.2 In this case there does not appear to have been any such application, or warrant, or return. Three persons, who say they were authorized by the legislature, lay out the road between the two *termini,*but do not say through whose land it passes. The same three, who are part of a committee of five, assess damages to certain persons, but they were limited in their authority to this object alone; — so that the road does not appear ever to have been laid out according to law. These proceedings were wholly void. But the grant remains good, and might afterwards be carried into execution. We must look then to the subsequent doings.

In 1811, those who had become owners of the franchise, petitioned the Circuit Court of Common Pleas for the appointment of a committee to examine the road and fix the place for a gate. A committee was appointed, who reported that the road was well made, and they designated the place for a gate. But there is no record of any acceptance of the report, or of any allowance of the road, or any authority from the Court to erect a gate; without which, according to *St.*1804, *c.*125, § 4, they have no right to receive toll.3 Here again there is a fatal defect.

In 1826, an attempt was made to cure all these defects, by *238an application to the Court of Common Pleas, to approve and allow the road and direct in what place or places the gate should be erected. A committee of three was appointed, who in April, 1826, reported that the road was well made, and fixed the place for the gate.

This last proceeding is of itself correct, but there was no lawfully established road for it to stand upon, and therefoie it was nugatory.

We regret the necessity of adopting the same conclusion which was arrived at by the Court of Common Pleas on the trial of this action. Without doubt the legislature can and will, upon application, establish the road by law, if it shall appear that every thing has been substantially done, and that the defects may be cured without doing injustice to any one.

The argument for the plaintiffs founded on the supposed existence of their right for near twenty years, cannot avail; for there has been no actual existence of the road for a period long enough to establish a prescriptive right to take toll, if such a right can by any length of time be established.1 It does not appear that the road existed in any form until 1811, five or six years after the act of incorporation was passed.

1

 See Revised Stat. *c.*39, § 18.

2

 See Revised Stat. c. 24

3

 See Revised Stat. c. 39, § 22.

1

 See Mathews on Presumptions, 303.