Freeman v. Kenney

Morton J. delivered the opinion of the Court. The jury have determined that the plaintiff’s residence and estate were in Wellfleet. And although the recent perambulation of [46] the line between the towns of Well fleet and Truro had thrown the plaintiff’s home and estate in the latter town, yet this was only primó, facie evidence of the line, and, we are satisfied, was shown to be incorrect by more potent evidence. By St. 1785, c. 75, § 1, it is enacted, “that the bounds of all townships shall be, and remain as heretofore granted, settled and established.” It is also provided, that the lines between towns shall be run and the marks renewed within three years, “ and once every five years for ever after, by two or more of the selectmen of each town,” “ and their proceedings, after every such renewal of boundaries, shall be recorded in their respective town books.” Selectmen clearly have no power to alter the limits of towns. This can only be done by the legislature of the commonwealth. Nor are they the ultimate judges of the territorial limits of towns. Their dtity is a ministerial rather than a judicial one. It is to resurvey an old line and not to establish a new one. It is to renew monuments as they have existed, and not to alter their location. They are liable to fall into errors and mistakes in their perambulations, and if these are to be deemed conclusive evidence, the boundaries of towns may be changed, and the rights of individuals, as well as corporations, affected by an accidental blunder or unintentional mistake of selectmen. When perambulations are duly made and recorded, they are not merely primó facie, but very high and strong evi dence. They may however be overbalanced by higher and stronger evidence, and, in the present case, we think they were so. The ancient monuments and immemorial usage and acquiescence of the adjoining towns, were properly judged by the jury to be of more weight than the recent perambulation of selectmen, who, preferring a straight to a crooked line, run it where they thought it probably ought to be, rather t> an where they believed it ever had been. The defendants, in assessing the plaintiff, acted, as has been agreed by the parties, with fairness, fidelity, and integrity. But this will not protect them from this action. They cannot correctly be said to have been required by the town of which they were assessors, to assess a tax upon persons, who did not reside within, or own estate lying within, its territorial [47] •units, and so are not protected by the statute of 1823, c. 138, § 5. Gage v. Currier, 4 Pick. 399 ; Inglee v. Bosworth, 5 Pick. 498 ; Ingraham v. Doggett, 5 Pick. 451. But the plaintiff has clearly misconceived his action. Trespass, and not case, is the proper remedy. The constable or collector acted by the command of the assessors contained in their warrant to him. The act itself was a direct and forcible injury to the plaintiff. And those who commanded it to be done are principals in it, as much as those who actually committed it. That trespass is the only proper form of action, was directly decided in 1814, in Agry v. Young, 11 Mass. R. 220. That decision has never been questioned, and the practice has been uniformly according to it ever since ; and indeed it was generally the same long before. Colburn v. Ellis, 5 Mass. R. 427. The plaintiff therefore cannot have judgment upon this writ and declaration.