Battey v. Town of Duxbury

The opinion of the court was delivered by Royce, Ch. J. The witness, Ridley, must have been excluded on the ground of interest, by assuming that he would be liable over to the town, if the plaintiff recovered, — the same ground on which such officers have generally been excluded as witnesses for their towns, in cases like the present. But the defendants claim, that [719] this witness was free from any such liability, — first, by reason of his resignation and return of papers to the selectmen, — and, second, by reason of the peculiar facts, which occasioned the highway to be out of repair. The select men are invested with very general powers in superintending the concerns of their towns, and are expressly empowered to make a temporary appointment of highway surveyor, when the office has become vacant by non-acceptance, death, removal, insanity, or other disability, of the person chosen by the town. Resignation, or refusal farther to act in the office, after having entered upon its duties, is not, in terms, provided for. But whether there was, or was not, strictly a legal right to resign in this instance, we could hardly believe, that the town could maintain a suit against the witness, for not continuing to act in his office, after their principal agents had taken from him his tax bill and warrant, with the mutual intention to release him from farther responsibility. As to the obstructions and want of repair, the case involves no liability for the new path ; it was not a town road. It is only for the state of the town highway, that the action is brought. This had been taken and rendered utterly impassable by the rail road company. And though it would appear, that that company acted prematurely, and without right, in thus obstructing and destroying the town road, before preparing a substitute, yet we think, the highway surveyor was not the person to contest their right, and therefore not to be rendered liable for their acts. The whole business was between the company and the selectmen; and no communication with the surveyor seems to be contemplated by the charter of the company, or the general rail road act of 1846. Hence it may result, that the town might be liable, for suffering the obstruction of their highway, and yet the surveyor of the district be excused. On both grounds, and especially the last, we think the witness was admissible. The other parts of the case need not be discussed. Judgment reversed and case remanded.