Lincoln v. Inhabitants of Warren

Knowlton, J. The only question in this case is whether a town can by a mere vote alter one of the boundary lines of a town way, and discontinue that portion of the way which lies outside of the newly located line. The Pub. Sts. c. 49, § 1, give the county commissioners jurisdiction to lay out, alter, or discontinue highways. Section 13 of the same chapter gives them jurisdiction to locate anew town ways. Town ways may be laid out or altered by the selectmen or road commissioners. Pub. Sts. c. 49, § 65. A like jurisdiction is commonly given to the mayor and aldermen, or some similar tribunal, in cities. If the selectmen or road commissioners unreasonably refuse or neglect to lay out or alter a town way, or if a town unreasonably refuses or delays to approve and allow a town way laid out or altered by the selectmen or road commissioners, resort may be had to the county commissioners. Pub. Sts. c. 49, §§ 73, 74. In all these cases, before an adjudication can be made, notice of the proposed action must be given to the landowners along the way, that they may have an opportunity of being heard as to their interests. The proceedings are necessarily of a judicial character, calling for a careful consideration of all questions which affect the interests of the public, as well as of those which affect private rights. For this reason the Legislature has wisely given jurisdiction to tribunals which are so constituted as to be able to hear and consider, and to decide with deliberation and intelligence, the various questions which are likely to arise. An ordinary meeting of the voters of a town cannot properly investigate such matters. When the selectmen or road commissioners lay out or alter a town way, they must report to the town the laying out or alteration, with the boundaries and measurements of the way, and must file their report in the office of the town clerk seven days at least before a meeting of the town called to vote upon the [311] acceptance and allowance of it; and the location or alteration cannot be established unless the town accepts it. Pub. Sts. c. 49, § 71. This is the only provision of statute that has come to our attention under which the inhabitants can vote directly upon the laying out or alteration of a way; and under this they cannot change the proposed location or alteration, but must accept or reject it as reported by the selectmen or road commissioners. In the present case, the town assumed to act under the Pub. Sts. c. 49, § 66, which provide that “ a town, at a meeting regularly called for the purpose, may discontinue any town way or private way.” This section is intended to permit action on the part of a town similar in kind to that taken upon a report of selectmen laying out a way. It presents a single issue, namely, whether a certain existing way shall be discontinued or not. It does not authorize the voters to consider whether a way shall be altered, and, if'so, in what way and to what extent, and whether, by changing one of its lines, a portion along one side of it shall be discontinued. Such action can properly be taken only by a tribunal proceeding judicially. We are of opinion that the change which the respondent town attempted to make was an alteration of the way, which comes within the provisions of the Pub. Sts. c. 49, §§ 65-67. Petition dismissed.