Spicer v. Slade

Per Curiam. Several objections have been taken to the recovery below, which need not be noticed, since we perceive one which goes to the merits of the case. Before the party can be in default, and liable to the cumulative penalties given by the 20th section of the act to regulate highways, (sess. 24. c. 186.) the commissioners of highways of the town must have given him a previous notice or order of sixty days, to remove his fence. We are of opinion that the requisite order was not made in this case. The words of the statute are, “ Where a highway has been laid out, and the same has been encroached upon by any present or former occupant of the land, through or by which such highway runs, the commissioners of the town shall, if in their opinion it be deemed necessary, order the fences to be removed, so that such highway may be of the breadth originally intended.” If the removal be not made in sixty days after such notice given, the penalties attach. To perform this duty, the commissioners should all meet and deliberate together on the subject of the alleged encroachment ; and then, if they, or a majority of them, should deem it necessary, they are to order the fence to be removed, so that such highway may be of the breadth originally intended. In this case, there does not appear to have been any such meeting, deliberation and decision, any further than what might be inferred from the fact that a witness heard one of the commissioners tell Spicer to remove his fence, that is, if he had encroached on the road or highway; and another witness heard the commissioners order him to remove his fence, so as not to encroach upon the highway; and a third heard them give him notice of the encroachment, and order him to .remove his fence. This order or notice was not sufficiently precise and particular to satisfy the law, and bring the party into default. The breadth of the road originally intended, and the extent of the encroachment by the party upon that breadth, and the place or places where, ought to have been specially stated, so that he might be able to obey the order, and know when he had performed his duty. The whole proceeding in this [361] case was extremely loose and uncertain; and the party ought not to be exposed to penalties, when the order or iiotice is stated so vaguely that he cannot ascertain from it, with any reasonable cer~ ~nty, the situation or extent of his encroachment. Judgment reversed.