The opinion of the Court was drawn up by
Kent, J.This action is trespass quare clausum, and the trespass alleged is the entry on plaintiff’s land, and the pulling down and destruction of certain buildings thereon. The defendants justify their acts on the ground, that whatever was done by them was necessarily, properly and lawfully done in the building or making of a street or road, legally located and established over the locus in quo, by the city of Gardiner.
The defendants to sustain their defence, offered certain records and proceedings of the city council of Gardiner, by which it appeared that, that body had undertaken to locate such a way, and had, after various proceedings, finally by vote, established the same.
The first question is, whether these proceedings gave jurisdiction to the city council, and, if so, whether any inquiry as to the regularity of these proceedings can be made in this action. It is insisted, that these proceedings, establishing the way, can only be annulled or vacated upon certiorari, and that, until thus vacated, they must remain valid and operative.
It was early settled in this State, that in case of a town way, laid out by the selectmen and accepted by the town, certiorari does not lie to quash the proceedings, and that the proceedings of the town in such a case may be examined and controverted in actions of trespass quare clausum. Harlow v. Pike, 3 Maine, 438; Longfellow v. Quimby, 29 Maine, 202; Robbins v. Lexington, 8 Cush., 292.
It has also been decided in numerous cases in this State and Massachusetts, that the writ of certiorari will lie as to proceedings of Courts of Sessions and of County Commissioners in laying out and establishing roads. Baker v. Runnels, 12 Maine, 235 ; Longfellow v. Quimby, 29 Maine, 202.
The same cases also establish the doctrine that, until re*584versed or annulled, or vacated, the proceedings before such tribunals will remain valid and operative.
The case of Baker v. Runnells, 12 Maine, presented the question distinctly, whether in an action of trespass for breaking and entering a close, where the defence was (as in the case before us) that the entry was for the purpose of making a road, legally laid out by the then Court of Sessions, any defects, errors or omissions in the records of the laying out could be inquired into in the action of trespass. It was held that they could not be, and that the adjudication of that Court must be respected as operative until annulled or vacated on certiorari. See also Todd v. Rome, 2 Maine, 61.
The next question is, whether the same rule shall apply to proceedings of a city council, acting under a charter which gives to that body exclusive authority and power to lay out any new street, and to estimate damages, and, in other respects to be governed by the same rules and restrictions as are by law provided for regulating the laying out of public highways and repairing streets.
In the case of Parks v. Boston, 8 Pick., 217, it was decided that the power vested in the Mayor and Aldermen of Boston, to lay out or alter streets, whenever in their opinion the.safety or convenience of the inhabitants shall require it, was judicial in its nature, and that a certiorari lies to remove the proceedings. In Dwight v. Springfield, 4 Gray, 107, it was held that the same rule applies to the proceedings of a city council, where the charter vests the power of laying out streets in such council.
The same doctrine is sustained, by necessary implication, in Preble v. Portland, 45 Maine, 241, where certiorari, in a case like the one before us, was sustained.
The city council of Gardiner acquired jurisdiction to authorize the commencement of their proceedings. This is all that is required. Small v. Pennell, 31 Maine, 267. The petition in this case asks the continuance of a street, from one place to another, both named, and declares that such a new way would be of great public convenience. The stat*585uto, c. 18, § 1, only requires, that petitions to the County Commissioners should be in writing, and describe a way, and state whether its location, alteration or discontinuance is desired. The petition being sufficient, and having been received and acted on, jurisdiction attached. If subsequent acts are erroneous, they are valid until vacated by certiorari. What the decision of the Court may be, if the record is brought before us in that form, can only be known after an examination to ascertain whether there are substantial defects in the proceedings.
We do not think that the facts offered to be proved by plaintiff, if proved, would authorize him to deny the validity of those proceedings in this form of action. Nor do we see how these facts, if established, could authorize a jury, or the Court, to find such fraud, collusion and corruption in the city council as would require that the whole proceedings should be treated as null and void, on the ground of intentional fraud and corruption; which is the only ground on which we can be called to act in this form of action. It was held in Parks v. Boston, before cited, that the essential question is, whether public necessity and convenience required the laying out or alteration. If it did, it is immaterial at whose expense it was made. "A donation or contribution from individuals to relieve the burden upon the city, has no tendency to prove that the enlargement of the street was not a public benefit.” We cannot nullify the solemn acts of a city government on the ground here assumed, because two or three members now are willing to declare that they voted in a particular way in consequence of a bond being filed.
Whether there is sufficient evidence in the records to show that the city council or its committee have ever declared that this street was of common convenience and necessity maybe a question hereafter. We suspend all these matters, because in this action they are not properly before us.
Plaintiff nonsuit.
Rice, Cutting, Davis and Walton, JJ., concurred.