delivered the following opinion : —
I concur in the result as stated in the opinion, and I do not see any good reason to depart from the positions and constructions therein stated. But I think there is a distinction not alluded to, which settles the first question raised beyond a doubt. I refer to the distinction between town and private ways. The question is, who has a right to petition the County Commissioners, after a refusal to lay out or to accept a town way, by the selectmen or by the town. It is contended that no one can thus appeal, unless he is an owner of land under improvement, from which land the proposed road leads to a town way or highway. But this limitation, as to the termini of the way, applies only to the private ways, described in § 18, c. 18, B. S. of 1857, as "laid out for one or more of. its inhabitants, or for owners of cultivated land therein.”
From the earliest times there have been two kinds of ways, which selectmen might lay out, and which towns might accept. The first are town ways. They are described in the-statute of 1821, c. 118, § 9, as ways for the use of such town only. The second class are private ways for one or more individuals thereof or proprietors therein. The same distinction is kept up in the B. S. of 1811, c. 25, § 27, and renewed in the present statute, in a more condensed form.
The authority in c. 18, § 18, of B. S. of 1857, is to "lay out town ways, and private ways for one or more of its inhabitants, or for owners of cultivated land therein.”
Town ways are not, and never were, regarded as laid out for one or more of its inhabitants as individuals, or for owners of cultivated land, but for the whole town, in its corporate capacity, and for the general convenience of all travellers.
*574Any one or more of the inhabitants may petition for a town road, whether they have any personal or direct interest therein or not. But a private way can only be laid out on petition by some owner of land under improvement, for a way from his land to some town or county road, already existing. By §§ 22 and 23, the right to*petition the County Commissioners is given, in case of a town way, to any inhabitant who is a petitioner therefor, but, in case of a private way, it is only given to the petitioner who, as owner of land under improvement, has asked for such.private way for his private convenience. The sections must be construed, not as applying the limitation as to ownership of land to town roads, but only to private ways. This is the plain and grammatical construction.
The present statutes have avoided the obscurity in language which led'to the decision in 41 Maine, 604.
I concur with the opinion on the second point. The law now, does not, as formerly, provide for an appeal strictly so called, but gives jurisdiction to the County Commissioners in all cases of refusal by the town or its officers, and authorizes them to proceed to act on the petition " as is provided respecting highways.” They may lay out the road prayed for between the termini named, as they might lay it out if it was a county road, on such petition. The refusal of the town has given them this jurisdiction, and they are not limited to the simple power of affirming or reversing the action of the town, as in case of a strict appeal.
Appleton, C. J., and Cutting, J., concurred.