The opinion of the Court was by
"WhxtmáN C. J.The object of this petition is to have certain proceedings of the commissioners, in reference to the location of a town way in North Berwick, quashed. The road had been located by the selectmen of that town, and, by the town, had been refused to be approved and allowed. On the application to the County Commissioners by three individuals, alleging said way to lead from land, under their possession and improvement, to a certain highway or road ; and that the refusal of the town to approve and allow it, was unreasonable, the County Commissioners established it.
It is now contended, that, the County Commissioners had not jurisdiction in the premises. They took cognizance of the matter, it may be presumed, supposing themselves to have a right so to do, under c. 25, § 34, of the Revised Statutes, which is to the effect, “ That if any town shall unreasonably refuse or delay to approve and allow any town or private way, laid out or altered by the selectmen thereof, and to put the same on record, any person aggrieved by such refusal or delay, if such way lead from land under his possession and improvement to any highway or town way, may” petition, &e. It is insisted by the petitioners here, that unless the termini of the road were at the land of the petitioners, under their possession and improvement, and at some other road, the County Commissioners had no jurisdiction of the subject matter; and the provision before recited is attempted to be assimilated to that of the statute of 1839, c. 367 ; the language of which was, that, *72“ unless said town or plantation shall refuse to lay out a road, for any person or persons, from some town or county road to the lot or lots of land, on which such person or persons may live,” &c. the County Commissioners shall not have power, &c. And the case of Pettengill v. The Co. Com. of Kennebec, 21 Maine R. 377, is relied upon as an authority to show, if the similitude exists, that the County Commissioners, in the case before us, had not jurisdiction. But the supposed similitude is very far from being apparent. The provisions in the two acts are essentially different. The act first cited is an enabling statute ; and the other was a prohibitory or restraining statute. The first is, that, in case of the laying out of a private or town way by selectmen, and the unreasonable refusal of the town to-approve and allow the same, the commissioners may proceed, &c. The latter was that they should not lay out a road in any town, unless in cases in which it (such town) should refuse to “ lay out a road, for any person from some town or county road to the lot or lots of land on which such person or persons-may live.” By the former the commissioners, on application of a party aggrieved, setting forth, that the road laid out led from land under his possession and improvement, without any restriction as to where else it might lead from, were authorized to proceed. If it led from his land to another highway or road it is all that is required. The latter confined the commissioners to the refusal to lay out a way from another road to the lot or .lots, &c. clearly showing, that there must be a termination at the lot or lots, on which the applicant, for their action, lived. But the language of the former is such as to embrace the case of a road leading by the land of an individual to another road. It would seem to be altogether immaterial from whence it came if it led from the land of the applicant, under his possession and improvement, to another road. The provision is wholly silent as to its being a way of absolute necessity ; a way without which the individual could have no access to his land. If such had been in the contemplation of the legislature it would have been easy, and, one would think, a matter of course for them so to have expressed themselves.
*73It is evident, therefore, that the allegations in the petition preferred to the County Commissioners presented a case completely within their jurisdiction. That being the case it becomes a matter, addressing itself to the sound discretion of this Court, as to whether a certiorari should be issued or not. Proof is expected, in such cases, of some error, other than in a mere matter of form. One ground insisted upon is, that the commissioners have not directly adjudged of record, that the refusal of the town to confirm the doings of their selectmen was unreasonable. But it was so alleged in the petition, under which they acted; and after final judgment we must understand, that allegations duly and necessarily made, were satisfactorily proved; although the proof rnay not be set forth in the record. No evidence appears in the case tending to show that the laying out of the road was inexpedient or injudicious. And, on the whole, we think the prayer of the petition for cer-tiorari should not be granted.