The opinion of the Court was prepared by
Shepley J.—It appears from the agreed statement of facts, that the defendant entered upon the estate of the wardens under the direction of the selectmen of the town of Gardiner, to open a street or way alleged to have been laid out by the selectmen of that town, and accepted by the town.
The selectmen of towns, are authorized by statute, c. 25, art. 2, <§> 27, to lay out, alter, or widen town ways, for the use of their respective towns, and private ways, for the use of one or more of the inhabitants. The damages occasioned by the laying out of a town way, are to be paid by the town ; those occasioned by the laying out of a private way, are to be paid by the persons, for whose benefit the way is laid out. The thirty-first section provides, that the selectmen shall determine the fact, whether it be a town or a private way. The record of the proceedings of the selectmen, presented in this case, states, that they “ have proceeded to view the locations of streets as requested by said petitioners, and have laid out the same as follows.” It does not state, whether the streets are laid out as town or as private ways. This was essential to- enable the town to act understandingly respecting the acceptance or rejection of the ways. And also to enable those persons who claimed damages, to know against whom those claims could be enforced.
It is insisted in argument, that it may be inferred from the proceedings in this case, that the selectmen intended to lay out a town way; and it is probable, that such was their intention. The statute authorizes an application to the county commis*179sioners by way of appeal in certain cases respecting the laying out, the acceptance by the town, and the damages pccasioned by the laying out of such ways. Their jurisdiction, in such cases, must depend upon the fact, that a particular kind of way has been laid out, or has been unreasonably refused to be laid out. Their jurisdiction should not rest upon an inference, more or less urgent and conclusive. The action of debt to recover damages sustained by any person, must also be founded upon an allegation and proof, that a town or a private way has been laid out; and in what mode should that fact be determined, if not decided by the selectmen as required by the statute ? It was doubtless intended to prevent these uncertainties and difficulties by requiring the selectmen to determine and state, whether the way was laid out as a town or as a private way.
The damages awarded by the selectmen are for the laying out of two streets. If the streets might be considered as ways, and one as accepted, and the other as rejected, it would be doubtful, whether a party injured could recover damages. It does not appear whether the other street was ever presented to the town for acceptance, or whether accepted or rejected.
It is provided by statute, c. 5, § 6, that town meetings shall be notified by posting an attested copy of the warrant “ in some public and conspicuous place in said town seven days before the meeting” unless the town has appointed a different mode, which does not appear to have been done by the town of Gardiner. By the use of the word “ conspicuous,” it was intended to prevent the possibility of calling a town meeting in a secret manner by posting a notice in a public place, and yet in such a position, that but few, if any, persons would be likely to notice it. The seventh section requires, that the person, who notifies the meeting, should make his return on the warrant, “ stating the manner of notice, and the time it was given.” It is difficult to perceive how there can be a compliance with this provision, unless the person states what he did and when he did it. It is necessary for the protection of the valuable rights designed to be protected by these *180provisions of the statute, that the persons, who post such notices, should be required to state “ the manner of notice and the time it was given.”
The return of the constable, upon the warrant in this case, and the one proposed to be made, are both too defective to show, that the town meeting was legally notified.
The record states, that the town “ voted to accept a street leading from Lincoln street to Dresden street, laid out by the selectmen, provided the damages shall not exceed thirty-five dollars.” The statute does not provide for the conditional acceptance of a town or private way. Nor is there any provision, as there is in relation to highways, that a way may be considered as not laid out or established, if the damages assessed should be greater in amount, than the public convenience would require to be paid. The existence of a town or private way must be certainly and finally determined before a party injured can recover bis damages, or sustain a process for their increase. If upon an application for their increase, a greater amount should be assessed, than was named in the conditional acceptance, it is contended, that the way must be considered as discontinued. This would not onlybe a result not authorized by any provision of the statute, but productive of gross injustice. For the party injured would be deprived of all means of recovery for the expenses and costs of the proceedings to obtain an increase by the very judgment awarding it. There is no provision for the recovery of costs in such case, as there is in case of highways.
The cases cited to show, that a conditional acceptance may be good, do not sustain the position. In the case of Jewett v. Somerset, 1 Greenl. 125, the Court adjudged the county road to be of common convenience and necessity, without any condition annexed ; and appointed the plaintiffs to lay it out, “ the service to be performed at the expense of the petitioners.” The only question decided, was, whether the plaintiffs, performing services under such a commission, could recover pay for them, of the county. The case of Patridge v. Ballard, 2 Greenl. 50, was a suit of like character to recover compen*181sation for services, performed in laying out a highway, of those persons, who petitioned for it, the county commissioners having ordered it to be laid out at the expense of the petitioners. And their right to recover, was made to depend upon the consent of the petitioners to pay for such services.
The Court has been urged to sustain these proceedings, should they prove to bo defective. But it. cannot yield to such considerations, when the effect of establishing such a rule might be productive of much inconvenience and uncertainty in public proceedings, and of serious injury to individuals, without any adequate redress. It will occasion much less mischief to require town officers to pay some attention to the ■ plain language of a statute, than would be occasioned by an attempt to uphold proceedings so irregular and defective, as those presented in this case. It will not be necessary to notice the other objections taken by the counsel for the plaintiffs.
According to the agreement of the parties, the defendant is to be defaulted.