The opinion of the Court was by
Emery J.This is an alternative award presented to the Court for obtaining their judgment upon such facts as are detailed in the award. On the presentment of the report of the referee, it was accepted, and judgment given by one Judge in favor of the plaintiff. Exception was taken to this decision. It was made formally for the very purpose of affording an opportunity more maturely to review that decision. We perceive that the referee ascertained that the highway was deficient in the requisite repairs, and that *201Injury arose to the plaintiff by reason of the obstruction or want of proper repairs, because he determines that the plaintiff recover $120 damages and costs, if, in the opinion of the Court, the facts set forth by the referee do not constitute a legal defence to the action.
But the defendants insist, that their defence is made out in consequence of the fact that one of the selectmen had at some period previous to the injury to the plaintiff, employed him to make and superintend all necessary repairs upon the roads where the injury arose and to the north line of HaTlowell, and prior to the injury, told him to expend so much money as was necessary; and from the circumstance that the plaintiff’s account of repairs upon the highways within the limits assigned him, was presented, allowed and paid by the town. The plaintiff was not a surveyor. No surveyors were appointed in writing for the year. The selectmen became such for the year. In behalf of the town of Augusta, one of the selectmen for 1832, made a contract with the commissioner of public buildings, for the erection of a back wall and raising the road in front of the State House. This work was in progress at the time the damage was done to the plaintiff, while passing on this part of the highway. A passage was left of about twenty-five foot, through and over which, before, at the time, and for several days after the accident, the public passed without injury. But prior to the injury to the plaintiflj and while the road in front of the State House was in progress of repair, the said selectman, in behalf of the town, requested the plaintiff to reopen the old road, in rear of the State House, the verbal consent of tho owner of the land having been obtained therefor, and render the samo safe and convenient for travelling, and authorized him to expend so much as should be necessary for that purpose. That a day or two before the accident the witness called on the plaintiff a second time, informing him of the interruption to the work upon the road, as well as the danger to the public by the travel over it, and again urged him forthwith to make the old road safe and convenient for travellers, as he was apprehensive accidents might occur on the new road, if the public travel should continue over it.
This action only was referred. Where right and fact only are referred, the decision strictly should be according to law» If a *202question of law be referred, the decision is binding though not according to law. As it is such law as the Judge selected by the parties may choose to dispense, courts of law do not interfere to alter it. In this case, the referee has invoked the judgment of the Court upon the legality of the defence to the plaintiff’s action.
The facts exhibit a solicitude on the part of the municipal authorities to afford accommodation, repair the highways, and protect against accidents. And it is urged, that the plaintiff should be regarded as a surveyor, with all the consequences attached to that character, as if legally chosen and sworn into that office, and that had he been such surveyor, he could not have sustained the suit. However analogous in principle his situation may be, as he did not sustain the legal character of a surveyor, we cannot say, that in point of law, he was brought within the incapacity which would have attended him, had he been such officer. It is apparent, that the town had put this part of the highway under the direction of the commissioner of public buildings, which would strongly indicate an excuse to the plaintiff for not interfering there. The 'road was not stopped, but a passage of about twenty-five feet kept open for the public to pass.
The right to go on adjacent land, with the assent of the owner, while the highway was repairing, might prevent a suit against those who should pass over it. But we do not discover the evidence of any binding contract on the part of the plaintiff to perform the worlt on another man’s land, which should exempt the defendants Jrom responsibility as to this lawful highway which was kept open. Nothing in writing from the owner of the land on the old road, authorizing the step of opening it, was exhibited to the plaintiff, and it might be exposing him to great inconvenience to make out the proof of the license, should he proceed to subvert the land and make repairs on it for a highway, if the owner of the land became dissatisfied and commenced a prosecution.
In our judgment the exceptions must he overruled.