The opinion of the Court, Whitman C. J. taking no pait in the decision, not having heard the arguments, was drawn up by
Shepley I.A distinction has been preserved in the statutes between the laying out and the alteration of highways and town ways. In the case of the Commonwealth v. Cambridge, 7 Mass. R. 158, it was decided, that a new highway could not be laid out upon a petition for the alteration of an old one. The act of Massachusetts of the 23d of March, 1786, § 7, provided, that towns may approve of any town or private way laid out by the selectmen, “ or may alter or discontinue any town or private way heretofore laid out and improved as such, when it shall appear, that the same is unnecessary for the inhabitants of such town.” The act of the 27th of February, 1787, authorized the selectmen to lay out town and private ways to be approved by their towns. And if the selectmen unreasonably refused to lay out, or the town to approve, of such ways, an appeal was permitted to the *129Court of Sessions. The act was silent respecting the alteration or discontinuance of such a way. In the case of the Commonwealth v. Tucker, 2 Pick. 44, it was said, “ there seems to be no express authority given to towns to discontinue town ways, but without doubt such authority exists by implication.” Upon the revision of the statutes in this State, in 1821, tho distinction between the authority to lay out and to alter ways was preserved. The provisions alluded to in both the statutes before named were re-enacted. The ninth section of c. 118, authorized the selectmen to lay out town or private ways, and provided, that “ any town may alter or discontinue any town or private way, when it shall appear, that the same is unnecessary for the inhabitants of such town.” There was no power given to the selectmen to alter or discontinue a town or private way; and according to the doctrine of the case of Commonwealth v. Cambridge, it could not be done, it would seem, under the power to lay out such ways. No appeal was authorized from any act of the town refusing to discontinue or alter such a way, while there was one for unreasonably refusing to approve of such a way laid out. It clearly was not the design of the statute to entrust the power to discontinue such a way to the action of the selectmen; and yet an alteration would operate as a discontinuance. The power to alter and to discontinue was originally connected and given to the towns entirely independent of the power given to the selectmen to lay out; and these powers have only been brought together in the same section by the revision. But the powers are as distinct in the new as in the older enactments. The latter to be exercised by the selectmen in the first instance, and the former to alter and discontinue, to be exercised by ike towns without any previous action of the selectmen, and with a final result not subject to revision by an appellate tribunal. It does not appear from the report of the referees, that the way, called a highway, connecting two small villages in the town, had not been legally laid out as a town way. The defence yvas not placed upon any such ground; but it was contended, that the alteration made in it some twelve or fifteen yearsjbefore “ wus *130not legally made by the town, inasmuch as it appeared from the records of said town, that the selectmen had not made any location and .record thereof before the issuing of the warrant for the town meeting, at which said alteration was accepted.” No action of the selectmen being required by the statute previous to an alteration or discontinuance, the action of the town in accepting the alteration would not be vitiated by their proceedings. The report of the referees should be accepted, unless it appears, that they decided the law erroneously to the injury of the defendants, and the highway, which was out of repair and the occasion of the injury, appearing to be one, which the town was obliged to keep in repair, according to the provisions of c. 118, <§> 17, the town would be liable to pay for the injury. And it is not necessary to decide, whether the section of the Revised Statutes, referred to in the report of the referees, can be considered as applicable to a case of injury happening before the statutes-were in force.
The rule of reference submitted the whole matter to the referees “ to be decided according to the principles of law.” The law and the fact were equally submitted to their decision ; and that clause did not prevent their being the final judges of both; while it required them to be governed, by what they judged the law applicable to the case to be. Payne v. Massey, 9 Moore, 666. They were under no obligation therefore to report the facts, and their conclusions upon them, to the Court for its revision.
Exceptions overruled,
and report accepted.