By E. S., c. 18, § 27, when a town, private, or highway is laid out by the county commissioners, "the way is to be regarded as discontinued, if not opened within six years from the time allowed therefor.”
By § 28, "when a town or highway is not opened and made passable by the town liable, within the time prescribed therefor by the commissioners, they may after notice to the town, cause it to be done by an agent, not one of themselves, on petition of those interested.”
In this case an appeal was had from the laying out of the commissioners, and upon such appeal the highway was discon-*241tinned. An appeal was bad from the decision, discontinuing the highway, and that decision was reversed and the highway ordered to be built.
Towns aro"pumshable by information for not opening highways newly laid out, as well as for not subsequently keeping them in repair. Maine v. Kittery, 5 Maine, 254. Now a town could not bo indicted for not opening a road which had been discontinued. Neither, in such case, would the county commissioners intervene to appoint an agent to open a road which they had discontinued.
The original proceedings were vacated by the subsequent action of the parties litigant. The time for opening a road must run from the final action of the tribunal having jurisdiction. While the result is in doubt and in controversy, neither the town is required to act nor are the county commissioners to intervene.
Exceptions overruled.
Barrows, DaNeoutij, Pete us and Libbey, JJ., concurred.