The opinion of the Court, was delivered by
Parris J.As to the first error assigned, we think it is sufficiently apparent from the records of the town, that the Selectmen laid out a town way. In their report to the town, dated Aug. 27, 1832, they certify that they have surveyed and laid out the rangeway as a town road beginning at the range line opposite Benaiah Titcomb, Jr’s, house aud thence proceeding to the Hallow ell road, describing said road by them so laid out by courses, metes and bounds. Nothing is said in any of the proceedings concerning a private way. The Selectmen certify that the road passes by the side of Mann’s land sixty-six rods, through his land forty-four rods, and through his inclosure seventy-four rods, but that no damage was claimed. In the absence of all intimations to the contrary, we think the road is to be considered a town road, laid out and accepted for general benefit, and, consequently, that the first error is not well assigned.
*36The second error assigned is, “ That the Court instructed the jury, that from the fact that the Selectmen had directed the petitioners to notify the owners or occupants of the land, of the time and place' of their meeting to lay out said road, in connexion with the fact that some of said owners and occupants were present at the time of their meeting for that purpose, the jury might legally presume that due notice had been given to all the owners and occupants of the land over which said road -was laid out, of the time and place of said Selectmen’s meeting for that purpose, whereas, by law, said court ought to have instructed the jury, that, upon proof of these facts alone, they were not authorized to presume that notice had been given,” &c.
The case shows that the Judge, so far from instructing the jury as is alleged in the assignment of errors, did in substance, give the instructions which the plaintiff in error contends ought to have been given.
The Judge certifies that the. jury were substantially instructed, that the request of the Selectmen to the petitioners, to give the notice, was not of itself sufficient to raise the presumption of notice, and that there were other circumstances in evidence, tending to establish the presumption, that all persons interested in the land over which the road was laid out, had due notice of the time of the Selectmen’s meeting for that purpose ; and that, upon this point, the jury were instructed, that if they were satisfied that notice had been given to the owners of the land, before the laying out of the road by the Selectmen, of the time and place of meeting for that purpose, they should find lor the defendant. In finding for the defendant, the jury must have found that'all persons interested were duly notified, and nothing appears in the case, tending to shew that they found this fact from incompetent or insufficient evidence. We are, therefore, of opinion that the second error is not well assigned.
The third error assigned is, that the Court of Common Pleas ruled and determined, that the vote of the town to “ accept the report of the Selectmen, laying out the rangeway near James Mann’s,” was such an approval and allowance of the road, as is required by law. In order to understand this vote of the town, it is necessary to recur to the report of the Selectmen and ascer*37tain what they did. If they merely laid out a rangeway, their act, in so doing, would be wholly inoperative, as the statute gives them no power so to do. Their power is confined to laying out roads or highways, and a rangeway is not a proper description either of a town road or public highway. But, by looking at their report, whatever of obscurity may appear in the record of the town, is fully explained. They laid out a town road on a range-way, as was done in Howard v. Hutchinson, 1 Fairf. 335. In their report to the town, they say, that they laid out the rangeway as a town road, and go on to describe the course, bounds, length and breadth of the road, with all necessary particularity; and this report was accepted in regular town meeting, called for that purpose.
We think that this action of the town was virtually an approval and allowance of the road as laid out, and it thereupon was legally established as a town way. We, therefore, adjudge that the third error is not well assigned.
As to the fourth error, we think with the Court below, that the unconditional acceptance, allowance and approval of the road on the 8th of October, established it as an open road from that time. Indeed we do not perceive how the votes of the town,, passed on the 28th of May, long before any action by the Selectmen, could have any legal operation. Towns have no authority, by statute, to lay out roads except by their Selectmen, and the authority and duty of the town commences \vhen the Selectmen report their doings thereto, and not before. Consequently, whatever the town may do in relation to a road, before receiving the Selectmen’s report, would be legally inoperative. We have already decided, that even the warrant for calling a meeting to consider the Selectmen’s report cannot be legally issued until after the laying out by the Selectmen. Howard v. Hutchinson, before cited. The votes of the 28th of May may be considered as advisory to the Selectmen, and as indicative of the willingness of the town at that time that the road should remain unopened for the term of one year; but it has not been contended that the first vote, “thatthe road, as prayed for by Thomas Marston and others, be opened, as requested by said Marston and others,” has any validity. That vote did not establish the road, nor has it any *38operation or effect, because the Selectmen had not, at that time, laid out the road and reported their doings to the town. Neither can the other vote, passed at the same time, have any greater validity. It was upon a subject not then regularly before the town, but upon which, when regularly presented, on the 8ih of October, the town might have legally acted, but did not. We, therefore, consider the road as regularly laid out and established on the 8th of October, as an open road, and that the fourth error is not well assigned.
If this was a town road, as it undoubtedly was, then it was not necessary for the defendant to wait until an order could be procured from a Justice of the Peace for the removal of the obstruction.
The 25th sec. of stat. ch. 118, upon which the plaintiff relies, relates exclusively to private ways, and provides that obstructions across such ways may be removed by the order of some Justice of the Peace. This we think must refer to such ways as are laid out for the benefit of individuals only, and not to such public roads as may by their use become highways and great thoroughfares through a town. ' Surely it cannot be necessary for a traveller, who finds a town way hedged up by impassable obstructions, to resort to a Justice of the Peace for authority to remove such obstruction whereby he may be enabled to proceed on his journey. Town roads are, in many cases, the most public highways in the State. Suppose an individual should throw a fence across one of the principal streets in the city of Portland, which streets are laid out by the authority of the city only; —■ would it be contended that whoever should remove such fence would be a trespasser, unless he did it under authority from a Justice of the Peace ? Such a principle would not be endured for a moment. Although the road under consideration may not be of so general importance, yet the case shews that it opened into the county road called the Hallowell road, and is very far from being what is denominated in the 25th section, a private way.
Upon the whole, we think there is no error in the proceedings of the court below, and accordingly the judgment of that court is affirmed.