Patridge v. Ballard

• Decision Date: 01 May 1822
• Citation: 2 Me. 50
• Parties: PATRIDGE v. BALLARD & AL
• Court: Maine Supreme Court

2 Me. 50

PATRIDGE v. BALLARD & AL

Supreme Judicial Court of Maine, Kennebec

May, 1822

[Syllabus Material]

ASSUMPSIT for services performed by the plaintiff, as one of a Committee appointed by the Court of Sessions of this county, to lay out a certain highway, upon the petition of the defendants.

From the report of the Judge who presided at the trial it appeared that in the year 1799 the Court of Sessions of this county established a standing rule, that all county roads laid out under the authority of that Court on the application of petitioners, should be laid out at the expense of such petitioners, unless otherwise specially directed; and that the practice ever since had been uniformly according to the rule.

It further appeared that upon a petition of the defendants, the Court of Sessions, after due proceedings had, appointed a committee of whom the plaintiff was one, to lay out the highway therein prayed for, at the expense of the petitioners; the committee proceeded under their commission to examine the ground over which the road was to pass; and being of opinion that a variation from the precise course described in the petition and thence copied into their commission, and for which one of the petitioners was also particularly solicitous, would better accommodate the public they recommended such alteration to the Court; --whereupon the Court being satisfied on due examination that the alteration would be a public benefit, and that it did not materially affect the general objects and views of the petitioners, and no person appearing to object, the Court amended the petition accordingly, and reappointed the same committee to lay out the highway agreeably to the petition as thus amended, at the expense of the petitioners; and the committee proceeded thereupon to lay out the highway, some of the petitioners being present at the location and made due return of their doings.

It did not appear that the petitioners ever specially employed any person as agent or attorney to present the petition; but it was handed by a third person, (together with another petition signed by others for the same highway but which was never prosecuted,) to the attorney who did in fact present it, and who attended to the business while it was pending. Nor did it appear that the committee were ever instructed or requested by either of the petitioners to lay out the highway, or that they were notified by either of the petitioners not to enter upon that service. But it did appear that they intended that the petition should be presented; that they well knew the general course of proceedings relating to its presentment and prosecution, from time to time while it was pending; and that none of them, during that time, ever disclaimed or disavowed the authority of the attorney who had charge of the business in their behalf. There was also some evidence exhibited touching the effect of the alteration made in the petition, upon the general object sought by the petitioners.

Upon this evidence the Judge instructed the jury that it was competent for the Court of Sessions, in the exercise of a sound discretion, to impose as a condition on granting the prayer of a petition for a new highway, that the expense of its location should be paid by the petitioners; --that the petitioners in such case were not bound to cause the road to be laid out; but if they did proceed and cause it to be laid out under such order, they thereby assented to the condition imposed; --that if the alteration in the road prayed for was one which would better accommodate the public, and at the same time was not material as it respected the objects sought by the petitioners, of which the jury would judge, such alteration would not discharge the petitioners, if otherwise responsible to the plaintiff; but that if the alteration made was inconsistent or at variance with the general objects and views of any one of the petitioners, unless such alteration had been assented to by the petitioners, it would discharge them; --that the rule of Court having been established for twenty years or more, and having been uniformly practised upon, except in special cases; and the attorney continuing to proceed in obtaining the location of the road, and the petitioners not objecting, but some of them taking an active part in forwarding the proceedings, were facts constituting sufficient evidence of assent to the conditions imposed respecting the expense; --and that it could not avail the defendants that all the committee had not joined in the action, nor that there was another petition for the same object, signed by other persons who were not defendants in this action.

The jury thereupon returned a verdict for the plaintiff, which was to be set aside if this direction was wrong; otherwise, to stand.

Judgment on the verdict.

Emmons, for the defendants.

1. The Court of Sessions had no authority by law to impose on petitioners the expense of locating roads, without their consent.

Their powers are given by statutes, in which this authority is not enumerated, and therefore does not...