#### The Inhabitants of Freetown, Petitioners, &c. *versus*The County Commissioners of Bristol.

Where a road proposed to be made between two towns in the county of B. would pass through the county of P., it was held not to be improper for the commissioners of highways of B., before locating the road, to take a bond from individuals, that so much of the road as was situated in the county of P., should be laid out by the commissioners of highways of the county of P., and that if it was not laid out, it should be built, kept open and kept in repair.

Where the commissioners of B. located such a road by courses and distances from the town of T.“ to a notched oak tree standing in the line of B. and P. counties, thence passing in the county of P. four and a half miles to a sycamore tree in the line of B. and P. counties,” and thence by courses and distances to the town of N., it was held, that the location was sufficient, although the trees mentioned were not public places; for when the road should be made through the county of P., it would run from town to town.

Where a road demanded by public convenience and necessity has been laid out and made, the court will not, upon the application of a town through which it passes but which does not own the soil, grant a *certiorari*on the ground that the proceedings of the commissioners of highways were not returned to the regular meeting of the county commissioners next after the performance of the services; though if the writ were issued, such irregularity would be sufficient to quash the proceedings.

A notice by the commissioners of highways, to all persons interested, of the time and place appointed for viewing a road prayed for, published in a newspaper printed within the county, is a legal notice.

This was a petition presented at October term 1828, for a writ of certiorari, in which the petitioners represent, that at the term of the county commissioners of Bristol held on the fourth Tuesday of September 1828, the commissioners of highways of the same county made returns of their laying out a new highway in the counties, of Bristol and Plymouth on the petition of William Hathaway and others for the location of a certain road from Taunton to New Bedford, beginning &c. (giving some of the courses and distances,) to a stake and-stones opposite the dwellinghouse of Asa Downs, thence (in different courses 757 rods) “to a notched oak tree standing in the line of Bristol and Plymouth counties, thence passing in the county of Plymouth four and a half miles and forty one rods to a sycamore tree in the line of Bristol and Plymouth counties,” thence, &c. (giving the courses and distances,) a part of which road, to wit, from the stake and stones opposite the dwelling-house of Asa Downs to a notched oak tree in the line of Bris*48tol and Plymouth counties, is located in the town of Freetown ; by which proceedings of the commissioners of highways the inhabitants of Freetown are aggrieved ; and the petitioners pray that the proceedings may be quashed : —

1. • Because these commissioners of highways had no authority to locate a highway as above mentioned, through the county of Plymouth or the counties of Bristol and Plymouth.

2. Because the proceedings were had by the commissioners without their having first given reasonable notice to the persons and corporations interested in the prayer of Hathaway’s petition.

3. Because the inhabitants of Freetown, as a corporation, never had any notice whatever of the pendency of that petition, or of the time and place when the commissioners viewed the road, and had no opportunity of being heard in respect to the prayer of that petition.

4. Because it does not appear by the records of the proceedings, that notice was given to the persons and corporations interested.

• 5. Because so much of the highway as is located in the county of Bristol, was not of common convenience and necessity, and the commissioners were induced to adjudge the whole of the highway to be so, and to lay out the same, by offers of indemnity improperly made by individuals and accepted by the commissioners, whereby certain persons, in consideration of the highway’s being located, undertook that so much of the same as was situated in Plymouth county should be laid out by the commissioners of highways of Plymouth county, and that if it was not laid out, it should be built, kept open and kept in repair.

6. Because it does not appear by the records of the proceedings, that any view was had of the highway, before it was adjudged to be of common convenience and necessity and located.

7. Because the proceedings of the commissioners were not returned to the next Court of Sessions held after the services were performed, or to the first meeting of the county commisoners held in the county of Bristol.

*49*E. P. Hathaway,*for the petitioners.

The commissioners of Bristol had no authority to locate a highway in the county of Plymouth. And if the location is supposed to stop at the dividing line of the two counties, then the road is not from one public place to another public place, and so the proceedings are irregular.

The three objections in regard to notice may be considered as one. To show the necessity of notice, he cited *Commonwealth*v. *Metcalf,*2 Mass. R. 118 ; *St.*1786, c. 67, § 4 ; *Pope*v. *Lancaster,*1 Mass. R. 86 ; *Commonwealth*v. *Chase, 2*Mass. R. 170 ; *Commonwealth*v. *Cambridge,*4 Mass. R. 627 ; *Commonwealth*v. *Egremont,*6 Mass. R. 491.

The bond taken by the commissioners vitiates their proceedings. *Commonwealth*v. *Sawin, 2*Pick. 547.

The route must be viewed before it is adjudged to be of common convenience and necessity. *St.*1825, c. 171, § 3.

The return of the commissioners of highways should have been made to the county commissioners at their March term 1828, whereas it was not made till the September term. *St.*1825, c. 171, § 3, compared with *St.*1827, c. 77, § 5 ; *Commonwealth*v. *Great Barrington,*6 Mass. R. 492 ; *Durell*v. *Merrill,*1 Mass. R. 411 ; *Commonwealth*v. *Sessions of Norfolk,*5 Mass. R. 435.

*L. Williams*and *Russell, contra,*

said the Bristol commissioners had not located the road in Plymouth county, but that they passed over that county without stating any courses and distances therein. But if they had located the road in Plymouth county, it would not vitiate the whole of their proceedings. *Commonwealth v. Blue Hill*Turnpike, 5 Mass. R. 420.

Sufficient notice was given to parties interested, and we now offer evidence to prove it. This is an application to the discretion of the Court, and the Court will inquire into the circumstances of the case, and if injustice has not been done, a certiorari will be refused. *Lees*v. *Childs,*17 Mass. R. 352 ; *Ex parte Weston,*11 Mass. R. 417 ; *Ex parte Miller,*4 Mass. R. 565.

It is a matter of discretion with the commissioners whether *50they will view the route of a highway, but in this case they did *n ^"act view the route. *St.*1825, c. 171, § 3.

Making a return is a ministerial act, and the neglect of such a duty ‘s not a ground for awarding a certiorari, *Baxter*v. Taber, 4 Mass. R. 367 ; *Briggs*v. *War dwell,*10 Mass. R. 357.

*Hathaway,*in reply,

said that where the commissioners re fuse a petition for a road, tney may dispense with a view ; but that they could not locate a road without having first viewed it. A return at the “ next court” is important, in order that individuals aggrieved may know when to apply for a jury

After the argument, witnesses were examined.

Noah Claflin, one of the commissioners of highways, stated that the commissioners were accustomed to publish notice ol applications for highways, in a newspaper, and to give notice to the clerks of the towns through which the road prayed for would pass ; that the commissioners viewed this road and adjudged it not to be of common convenience and necessity ; that after-wards there was a rehearing, but that no view was had after the petition for the rehearing.

Another witness testified, that so much of the road as lies in the county of Bristol (being about twelve and a half miles) was finished, with the exception of about one mile, and that the part lying in Plymouth county was not worked at all.

From the testimony of David Gray, one of the commissioners, it appeared that Hathaway’s petition was presented to the commissioners on October 25th, 1826, and that notice of it was ordered to be given to the clerks of towns ; that in April J827, the road was adjudged not to be of common convenience and necessity ; that at the meeting of the commissioners in September 1827, there was a petition by Francis Baylies and others for a rehearing, notice of which was ordered to be printed- in a newspaper, the commissioners having then, as the witness believed, departed from their rule, of giving notice to the town clerks.

*Hathaway*stated that it could be proved that no notice was given to the town clerk.

*Per Curiam.*

*We see*no objection to-the bond in question.

It was very proper, under the circumstances, that such a bond *51should be taken. It cannot be supposed to have infl .enced the minds of the commissioners in determining whether a new road from Taunton to New Bedford would be of common convenience and necessity.1 The road would have been useless, if it nad stopped at the lines of Plymouth county, and it was proper to take measures to prevent a useless expense to the county of Bristol in case the commissioners of Plymouth county should refuse to locate the part of the road falling within the county. It is a strong case for the exercise of the discretion of the Court in support of the proceedings, unless injustice has been done.

We think the objection, that the location goes to and from the trees described, cannot avail. When the part of the road which lies in Plymouth county shall be made, the road will lead from town to town.

The objection that the return of the location was not made to the next Court of Sessions held after the service was performed., would be fatal in case the writ of certiorari had issued.

But the persons interested in the return are those who own the land over which the road runs. No complaint has been made by any such owner. It is true that the inhabitants of Freetown are in some-degree interested, as they may be burdened with the expense of repairs ; but this is not so high an interest as to require the issuing of a certiorari, when the public convenience demands the establishment of the road.

The only doubt in our minds is in respect to the notice. The objection on this point would be cured by proof of notice, or of an appéarance on behalf of the town of Freetown. Claflin states, that it was customary to give notice to town clerks, hut as the counsel for Freetown says he can prove by the clerk of that town that no such notice was given, we cannot presume notice from Claflin’s testimony. The case will, therefore, be i ontmued nisi, in order that the parties may produce evidence on this point.

The Court were accordingly furnished, in the vacation, with several affidavits.

In the advertisement published in November 1826, and sub*52sequently to the petition of Baylies in 1827, the proposed road was described as “ a public highway from New Bedford to Taunton by the way of Rounseville’s furnace.”

By the affidavit of Job Morton, the chairman of the commissioners of highways, it appeared that at their first meeting it < was determined by them, that notice of the pendency of a petition, published in a newspaper printed in the county, was reasonable and sufficient notice within the meaning of the statute.

The opinion of the Court was afterward drawn up by

Parker C. J.

This application for a certiorari comes be-f°re us under circumstances which incline and authorize us to refuse it, if the parties in interest have had a hearing before the commissioners, or such notice of the time and place of hearing, that they might have presented their objections seasonably.

Towns or individuals whose interests may be affected by the opening of a new road, ought not to lie by and withhold their objections until great expense has been incurred, and then apply to this Court to rip up the whole proceedings. As most of the objections to the doings of the commissioners are aside from the real merits of the case, we have taken much pains to ascertain whether due notice was given of the meeting of the commissioners, to consider the application for this road, so that a hearing might have been had of the inhabitants of Freetown, who now ask to have the proceedings quashed. The result of our inquiries is, that there was without doubt such notice.

The statute giving authority to commissioners of highways prescribes no particular mode of notice. It merely requires that “ reasonable notice ” shall be given of the time and place appointed for viewing the road prayed for, and after such view and hearing of the parties, the commissioners shall have power to order and determine the making &c. of such road. *St.*1825, c. 171. The mode of giving notice seems to have been left by the legislature to the discretion of the commissioners. They adopted the practice of advertising in a newspaper printed in the county, the time and place of meeting for the consideration of the application. All official notices had been usually published in the same way. We have seen that the original application for the road, and the time and place of hearing *53thereon, were thus advertised, and that other parties interested did in fact attend the hearing.

The petition was, upon the first hearing, dismissed ; after which it was revived by an application for a rehearing by Francis Baylies and others, and upon this application new notice was given of the time and place of hearing, in the same way. The route of the proposed road was sufficiently described, by referring to Rounseville’s furnace, to give notice to the inhabitants of Freetown, of the course it would take through that town. In addition to this, one of the commissioners, the chairman, was also one of the selectmen of that town ; and be states "n his affidavit, that he informed another of the selectmen of hat town (there being hut three) of the pendency of the petition for the road, and that they determined it was not necessary to call a meeting of the inhabitants on the subject. There having been legal notice of *the*meetings, and reason to suppose there was actual notice to those officers of the town whose duty it was to take charge of the matter for the town, we do not think that at this period, after the road has been laid out and actually worked at a great expense to the individual who contracted with the commissioners, a certiorari ought to be granted on account of formal defects in the proceedings.1

*Petition dismissed.*

1

 See *Dudley*v. Cilley, 5 N. Hamp. R. 558.

1

 See Revised St* . 24, § 2, 6.