Ford v. Erskine

• Citation: 83 A. 455,109 Me. 164
• Parties: FORD v. ERSKINE et al.
• Decision Date: 04 June 1912
• Court: Supreme Judicial Court of Maine (US)

83 A. 455

109 Me. 164

FORD

v. ERSKINE et al.

Supreme Judicial Court of Maine.

June 4, 1912.

Report from Supreme Judicial Court, Lincoln County.

Action by Sarah B. Ford against Samuel D. Erskine and others. On report. Judgment for plaintiff.

Trespass quare clausum fregit to recover damages for the construction of a road across the plaintiff's land. Plea, the general issue, with a brief statement, alleging that any acts done by the defendants on the plaintiff's land were done in the construction of an alteration of an existing highway laid out by the county commissioners of Lincoln county. The case was first submitted to the jury on the question of damages, which were assessed at $270, and then was reported to the law court for determination, with the following stipulations: "If the plaintiff is entitled to recover, because there is no legal road at the place where the trespass is claimed to have been committed, judgment is to be awarded for the plaintiff for the sum of two hundred and seventy dollars ($270.00); it being the amount fixed by the jury as damages. If the plaintiff is not entitled to recover as above, the court is to determine whether there is a trespass outside the location, and, if so, assess the damages therefor. If no liability, judgment shall be for the defendants. All objections to the testimony to be passed upon by the law court and the case to be determined upon that which is admissible."

Argued before WHITEHOUSE, C. J., and SAVAGE, KING, BIRD, HALEY, and HANSON, JJ.

Arthur S. Littlefield, of Rockland, for plaintiff.

Tupper & Perkins, of Boothbay Harbor, for defendants.

BIRD, J. This is an action of trespass quare clausum, whereby the plaintiff seeks the recovery of damages for the construction of a road across her land in the town of Jefferson. The defendants, pleading the general issue, by way of brief statement claim that any acts done by them upon plaintiff's land were done in the construction of an alteration of an existing highway laid out by the county commissioners of Lincoln county.

To establish their justification, the defendants offered the record of the county commissioners, from which it appears that the selectmen of Jefferson duly petitioned the county commissioners that a change be made in the highway leading from the North Whitefield road, commencing at a defined point, "said proposed change of location to extend in a course eastwardly and re-entering the highway, as now located," at another described point, and that after notice ordered and given, hearing had, and the continuances taken, as required by statute, at the September session, 1909, their proceedings were adjudged to be closed and their return ordered to be recorded. The return determines that common convenience and necessity require the alteration made as prayed for, and describes the road as laid out by them as "beginning * * * on the easterly side of the town road; * * * thence running [here follow various courses and distances] to an elm tree standing on the easterly side of the road, before mentioned."

Neither in the return nor other part of the record is there an express adjudication that the road, an alteration in which is prayed for, is a highway or county road. Had the petition prayed for the location of a highway, the petition might show jurisdiction, as held by Waldo v. Moore, 33 Me. 511, 514. And where the prayer is for alteration of a highway, the taking of jurisdiction and the subsequent alteration of the highway, described by the commissioners, might warrant the presumption that the commissioners found as a jurisdictional fact the existence of the highway sought to be altered. See Plummer v. Waterville, 32 Me. 566, 568.

But in the case at bar the return of the commissioners, with no express adjudication as to the existence of the alleged highway, shows that the alteration made was that of a town road; and, while the word "road" may include county roads, town roads, turnpikes, etc. (see Windham v. Com'rs, 26 Me. 406, 408), it can hardly be contended that "town road" can be construed to comprehend county road or highway. It appears, therefore, from inspection of the record, that the road which was altered was a town road, and not a county road, as alleged in the petition. The location of a county road and the alteration of a county road are not one and the same thing. Commonwealth v. Cambridge, 7 Mass. 158, 165; Raymond v. County Com'rs, 63 Me. 112, 114. And it cannot be contended that the way laid out in the return is the location of a new county road, especially in view of the fact that part of the old road, which it was attempted to change, is by the return of the commissioners attempted to be discontinued.

Being an inferior court, their jurisdiction depended entirely upon...