If the town way crossing the plaintiff’s close was legally established, the defendant was justified in doing the act complained of; otherwise not; and the burden is upon him.
We sssume that the procedings were correct, or by the proposed amendments may be made' so, as it regards the notice of the meeting at which the road was accepted by the town, and that the non-assessment of damages by the selectment was immaterial, for the authorities cited by the defendant’s counsel would seem to authorize such a conclusion. And still there remains another objection, where no amendment has been proposed, to the legality of the way, which we deem a valid one.
R. S., chap. 25, sec. 28, provides that “ No such town or private way shall be laid out or altered, unless seven days previous thereto, a written notice of the intention of the selectmen of the town to lay out or alter the same, and stating the termini of such road, shall be posted up in two or more public places in the town, and in the vicinity of the proposed route.”
It does not appear in the selectmen’s return of their doings that the notices were posted up in the vicinity of the proposed route. The notices may have been so posted, but such fact should appear affirmatively from the return; since from that alone we can take judicial notice, and can infer nothing except from what appears.
When we consider that “private property shall not be *577taken for public uses without just compensation,” and that the statute is explicit in prescribing the notice to be given, and also perceive that the statute may have been violated in that particular, we cannot determine the road to have been legally established. Consequently the defendant is to be defaulted, and judgment rendered for the amount agreed upon by the parties.