Opinion
Decided June, 1896.
A finding by the county commissioners adverse to the removal of gates across highway will not be disturbed if the laying out was legal, or the highway has become such by user. If gates maintained across a highway constitute an unlawful obstruction, the remedy is by indictment under P. S., c. 77, s. 8. The laying out of a highway by selectmen is the exercise of a judicial power conferred by statute, and cannot be collaterally impeached.
PETITION, to the county commissioners, for the removal of gates and bars across a highway in Tamworth, laid out by the selectmen, subject to gates, June 5, 1852. The petition alleged that the gates and bars had become unnecessary and inexpedient, that the selectmen, upon petition to remove the gates, refused to do so, and requested the commissioners to lay out the road as an open highway. Upon due notice and hearing, the commissioners reported that in their opinion there was no occasion to remove the gates and that the prayer of the petition should not be granted. The plaintiffs introduced a copy of the record of the laying out in 1852, and claimed that it was illegal as to the laying out of the highway subject to gates and that the commissioners should order them removed. The court ordered judgment on the report of the commissioners, and the plaintiffs excepted.
Josiah H. Hobbs, for the plaintiffs.
Sewall W. Abbott, for the defendants.
The plaintiffs have no case. If the laying out of the highway in 1852, subject to gates, was legal, no error appears in the finding of the commissioners that there is no occasion to remove the gates; and if the laying out was illegal, the finding is in no wise affected, because the highway long since became a legal one by user. P. S., c. 67, s. 1. But suppose it did not, the plaintiffs stand no better; for if it be assumed, in accordance with their contention, that the imposition of the gates was illegal and that their maintenance has since been and now is an unlawful obstruction to the travel on the highway, their remedy is by indictment. P. S., c. 77, s. 8. Then, again, it is beyond doubt or disputation that the laying of the highway by the selectmen, in the exercise of a judicial power conferred on them by the statute of highways, cannot be impeached or set aside in this collateral proceeding. Spaulding v. Groton, ante, p. 77, and authorities cited.
Exception overruled.
CLARK, J., did not sit: the others concurred.