Inhabitants of Windham v. Cumberland County Commissioners

The opinion of the Court was drawn up by Teotey J. The petition, under which the respondents undertook to locate and establish the way in question, represented that the public highway, as traveled from Raymond and other towns mentioned, and the Northern parts of New Hampshire, through those towns to the city of Portland, was subject to great complaint on account of certain hills in Windham, especially Windham hill, so called; and the petitioners pray that a new road, commencing at some point on the present traveled road, near Abraham Anderson’s in Windham, and passing on in the most convenient and practicable route, easterly of Windham hill, and intersecting the present traveled road at some point in the vicinity of the lower corner of said Windham (being wholly in said town of Windham) may be located and opened. After the usual proceedings, the County Commissioners adjudged the road to be of common convenience and necessity ; and the record particularly describes the courses and distances of the same, which was located accordingly. The application now before us is for a writ of certiorari to bring the records of the proceedings of the County Commissioners, touching the road in question, before this Court, and [409] that the same may be quashed. Several objections to the cor-redness of the course pursued by the respondents, as disclosed by the record, are relied upon. One is, that in the petition praying for the location of the road, it does not appear that the object of the prayer was a county road. In common parlance the term “ road” is a generic term, comprehending “ county roads,” “ town roads,” “ turnpikes,” “ private ways” and perhaps others; and to determine what kind of a way is sought to be located, it is proper to look at the whole petition together. No particular words or form of words are required by the statute in such application, and the greatest technical accuracy and precision is not to be expected. Neither is it necessary that those who are authorized to judge of the necessity and convenience of ways should use technical terms in their adjudication and location, provided their intention is manifest, and they have jurisdiction of the subject; this jurisdiction does not fail because the word “ road” instead of “ highway” is used in the petition or the record; If the way prayed for, was one which the County Commissioners were authorized on a proper petition to lay out and establish, the language used in this petition was sufficient to empower them to act. Another ground relied upon, to entitle the present petitioners to the writ prayed for, is, that the way was not located according to the prayer of the petition to the County Commissioners. It is not necessary that the Commissioners should describe the way located in the same language used in the petition, provided there is a substantial compliance therewith. Where the road in the petition is indicated by general terms, and when it is not undertaken therein to point out the exact route, the description in the petition alone would show no location, which could be afterwards found. The petition under which the Commissioners acted in this case does not point out precisely either terminus or the courses and distances in the route. The record shows that the road prayed for, was adjudged to be of common necessity and convenience, and the Commissioners proceeded to locate “ the road.” There is [410] nothing- showing that the way was not laid out as prayed for, and by the record it is to be understood, that there was not a departure from the way as prayed for. It is denied, that the County Commissioners have jurisdiction in a case where the way prayed for is wholly within the limits of one town. This question was before the Court in the case of Harkness v. Co. Commissioners of the county of Waldo, 26 Maine R. 355 ; and it was held that the statutes, construed according to well settled rules, conferred upon County Commissioners the jurisdiction exercised by the respondents in this case. Other objections were presented, which are involved in the points, herein discussed, or not relied upon in the argument. Writ denied and petition dismissed.