White v. Lincoln County Com'rs

• Decision Date: 04 November 1879
• Citation: 70 Me. 317
• Court: Maine Supreme Court
• Parties: THOMAS G. WHITE & others--selectmen of Dresden, petitioners for injunction v. COUNTY COMMISSIONERS of Lincoln county.

70 Me. 317

THOMAS G. WHITE & others--selectmen of Dresden, petitioners for injunction v. COUNTY COMMISSIONERS of Lincoln county.

Supreme Judicial Court of Maine.

November 4, 1879

The case is presented to the law court, on the following papers-- under R. S., c. 77, § 13.

PETITION FOR INJUNCTION.

" To the Honorable Justices, etc.

Thomas G. White, Andrew J. Reed and Charles F Allen all of Dresden in the county of Lincoln, selectmen of said town of Dresden in behalf of the inhabitants of said town, and in behalf of themselves, respectfully petitioning represent to this honorable court:

That the county commissioners of the county of Lincoln, at a meeting held by them at Dresden in said county on the sixteenth day of August, A. D., 1872, without lawful authority and having no jurisdiction in the premises, upon the petition of Knowles Gahan and others proceeded to lay out, and did lay out a town way wholly within the boundaries of the said town of Dresden, described as follows, to wit …

That said commissioners made report and return of said laying out at the September term of said court, A. D., 1872, whereupon the same was continued to the December term of said court 1872, when said report was ordered to be recorded; all of which more fully appears by the record of the proceedings of said commissioners in the premises, a duly certified copy of which is herewith filed marked " A."

That the proceedings of said county commissioners were not according to the provisions of the statutes of this state for laying out, locating and establishing town ways, and that said county commissioners had no jurisdiction over said way--or authority in law to proceed to lay out and establish said town way as it appears by said record they undertook to do, for the following reasons, among others, viz.:

First. Because said county commissioners had no original jurisdiction of the matters embraced in the petition of said Knowles Gahan and others, and no authority in law to act thereon.

Second. Because it is not alleged in said petition of Knowles Gahan and others, nor is it set forth in the record of said commissioners that said Knowles Gahan, or any of the signers of said petition were inhabitants of the said town of Dresden, or that they, or any inhabitant of said town had petitioned the municipal officers of said town at any time before the filing or presentation of said petition to said county commissioners to lay out said way; and because it does not appear in said petition nor in said record, that said municipal officers of said town of Dresden had unreasonably neglected or refused to lay out said way on petition of any inhabitant of said town.

Third. Because it is not stated in said petition of said Gahan and others, and does not appear in said record that the said original petitioners presented said petition to said county commissioners at a regular session thereof, within one year after the municipal officers of said town of Dresden had unreasonably neglected or refused to lay out said way; nor that said municipal officers had unreasonably neglected or refused to lay out said way within one year prior to the time of the filing, or presentation of said petition.

Fourth. Because it does not appear in said original petition, or by said record, that any petition or application for the laying out of said way was made in writing to the municipal officers of said town of Dresden.

Fifth. Because the municipal officers of said town of Dresden had not in fact neglected or refused to lay out said town way, on petition of any of the inhabitants of said town, or on application of any of the original petitioners to said county commissioners, within one year preceding the presentation of said petition to said county commissioners by said Knowles Gahan and others.

That Robert Montgomery, David Chamberlain and Charles M. Davis, county commissioners for the county of Lincoln for the time being, at a court held by them at Wiscasset, in said county, on the first Monday of September, A. D., 1877, without jurisdiction in the premises and without any lawful authority therefor, and against the protestations of your petitioners, upon the application of Knowles Gahan and others, ordered that Knowles Gahan of said Dresden be appointed agent to cause the town way thus unlawfully attempted to be laid out and established by the county commissioners of said county as is hereinbefore set forth, to be opened and made passable; and that when said Gahan shall have made a contract therefor, and filed a copy thereof in the clerk's office, the clerk shall certify to the assessors of said Dresden the time when the contract is to be completed, and the amount to be paid therefor, as more fully appears by a certified copy of said order herewith filed marked " " " " B."

That they are informed and believe that said Knowles Gahan has made a contract with one Elbridge McFadden of said Dresden to open and make said road passable, and that said McFadden is now about to proceed to open, make and build said road, and that he threatens to do so forthwith.

That the inhabitants of said town of Dresden are in danger of suffering great wrong and irreparable injury, by means of the premises; that they are without any adequate remedy by any common or ordinary process of law:--

To the end, therefore, that the said Knowles Gahan may be perpetually enjoined from any further proceedings under the said order of said county commissioners, and that the said Gahan his servants and agents, and especially the said Elbridge McFadden may be restrained from opening and making said town way, and that said commissioners may be prohibited from issuing any warrant of distress against said town, for money expended by said agent, your petitioners pray, that a writ of injunction" etc.

RECORD OF COUNTY COMMISSIONERS.

At a meeting of the county commissioners begun and holden at Wiscasset, within and for the county of Lincoln, on the last Monday of December, being the thirtieth day of said month, A. D., 1872.

No. 16. Gahan and als., for town way in Dresden.

Knowles Gahan and others, inhabitants of Lincoln county, by their petition respectfully represent, that a town way in the town of Dresden, (county aforesaid,) from a point near the dwelling house of James H. Mayers on the east side of the river road leading from Dresden upper bridge to Bath to a point on the road known as the back road between the foot of the sand hill (so called) and the house of David Robbins, would be of great public convenience; that the selectmen of Dresden aforesaid, have unreasonably refused to lay out said way.

Wherefore your petitioners considering themselves aggrieved by such refusal, pray that your Honors would, agreeably to law in such cases made and provided, after due proceedings had, approve and lay out the said town way, and cause the same to be duly recorded and built. Dated at Dresden, Maine, March, 1872.

This petition was presented at May term, 1872, at an adjourned session thereof held on the second day of July, A. D., 1872, when notice was duly ordered.

Pursuant to the petition and notice thereon, the county commissioners of Lincoln county, met the parties at the time and place designated in said notice, and it appearing that all the notices had been legally served and published, we the said commissioners then proceeded with the parties to view the route prayed for and at a convenient place in the vicinity, heard said parties and their witnesses, and after a full hearing of all the facts, testimony and arguments by them presented, do adjudge and determine that the prayer of the petitioners should be granted; and in accordance with the foregoing adjudication we the said commissioners proceeded to lay out and establish a public town way as follows, etc.

Given under our hands this 2d day of September, A. D. 1872.

Which report was accepted.

The same was then continued to the present term, and now no petitions for increase of damages being presented or pending the proceedings under the said petition are this day (being the thirty-first day of December, 1872) closed, and it is ordered that the costs arising on the said proceedings which are taxed at the sum of $34.81 be paid by the said town of Dresden into the treasury of the county of Lincoln in three months from this date and that the said proceedings be recorded by the clerk of this court and by the town clerk of said town of Dresden.

Certified to town clerk February 8, 1873.

AMENDMENT OF RECORD.

At a meeting of the county commissioners held at Wiscasset within and for the county of Lincoln on the last Monday of December, being the twenty-eighth day of said month, A. D., 1874.

Ordered : That the records of this court, upon the petition of Knowles Gahan and others, for the laying out of a town way, in the town of Dresden, commencing at a point near the dwelling house of James H. Mayers, on the east side of the river road leading from Dresden upper bridge to Bath, to a point on the road known as the " back" road, between the foot of the sand hill (socalled) and the house of David Robbins, which was presented at the May term, 1872, at an adjourned session thereof held on the second day of July, 1872, and upon which the report of the commissioners was made at September term, 1872, all of which is recorded in the records of the county commissioners' court, volume nine, page five hundred twenty-eight to five hundred thirty, inclusive, be amended in accordance with the facts found by the said commissioners upon the hearing of said petition, as set forth in the petition of said commissioners, presented to the supreme judicial court, at the October term, 1874, viz: by inserting in said record, on page five hundred and twenty-nine,...