Before we conclude this subject it will be proper to notice the following provision by statute. Stat. 1786, c. 67, s. 7. What shall be deemed of a highway, where from length of time they are not known, and the same cannot be ascertained by the records. What length of time tinuance of a fence or or private way. It is enacted, that where buildings or fences have been erected, fronting upon, or against the training-field, burying-place, common landing-place, high way, private way, the ancient boundaries street, lane, or alley, in any town, district, parish or precinct in this government, where, from length of time, or otherwise, the breadth or quantity thereof is not known, or can be made certain by the records, or by any other shall justify the conboundaries, and such buildings or fences have been up- building on any town held, maintained and continued for more than forty years; such fences or buildings shall be deemed and taken to be the true ancient boundaries thereof; but no length of time (under three score years) shall justify the continuance of a fence or building, on any town, or private way, or on any public highway, or common training-field, burying-place, landing-place, or other piece of land appropriated for the general use, ease or convenience of the community at large, or for the inhabitants of any particular county, town, district, parish or precinct; but the same may be removed by order of the court of general sessions of the peace, or the supreme judicial court, as a nuisance, upon the presentment of a grand jury. TITLE XLIII. Stat. 1786, c. 81, s. 7. Of damages where a 1. OF DAMAGES. damages incurred through defect of ways. 2. Where private lands are appropriated to public uses. 3. Where buildings are prostrated to prevent an increase of fire. 4. By mischievous dogs. 5. How damages are to be assessed where a defendant makes default. 6. Damages and recompense to prosecutors in convictions of larceny. I. Of damages incurred through defect of ways. By statute it is enacted, that if any person shall lose a limb, break a bone, or receive any other injury in his person, or in his horse, team, or other property, through the defect, or want of necessary repair or amendment of any highway, causeway, or bridge; the person or persons injured thereby, shall and may recover of the county, town, the person or persons who are by law obliged to keep the same highway, causeway, or bridge in repair, in case they had reasonable notice * of the defect, double the damages thereby sustained, by a special action of the case, before any court proper to hear and determine the same. * As to what may be considered reasonable notice, the court, in Lobdell v. Inhabitants of New Bedford, were of opinion that for every defect, an action on the statute could not be maintained such as sudden defects by floods, &c. But as to open and visible defects, and such as could be prevented by common and ordinary diligence, towns are, by law, bound to take notice and guard against. 1 Mass. Rep. 155. Ibid. What sum shall be administrator, heir, of any person killed ways. And if the life of any person shall be lost through the deficiency of the way, causeway, or bridge, or for want of rails on any bridge, the county, town, or persons who are paid to the executor, by law obliged to repair and amend the same, shall be devisee, or creditor, liable to be amerced in one hundred pounds, to be paid to through defect of the executor or administrator of the deceased, for the use of the heirs, devisées or creditors, upon a conviction before the court of general sessions of the peace, or supreme judicial court, on a presentment or indictment of the grand jury. Ibid. In such case the party previous notice of Provided however, that the county, town, or other person or persons, who of right ought to maintain and keep the same in repair, had been previously notified of such liable must have had want of repair and amendment, in writing, under the such defect. hands of two or more credible witnesses, or by the presentment of the grand jury, or by information of the attorney-general, or the person acting for the government in his absence, filed in the court of general sessions of the peace, or the supreme judicial court. II. Where private lands are appropriated to public uses. The constitution has provided, that whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. Bill of Rights, art. 10. Stat. 1786, c. 67, s. 1, Of damages where is laid out through the land of any per son. By statute also it is enacted, that if any particular person or persons who are owners of land through which private town roads shall be laid out, be injured thereby, a private town road he or they shall receive such recompense as the party interested and the selectmen shall agree upon, to be paid by the town, or the individual person or persons, for whose use the road is laid out, or as shall be ordered by the justices in their general sessions of the peace, upon an enquiry into the same, by a jury to be summoned for that purpose, or by a special committee, if the parties agree thereon. Ibid. s. 4. Of damages where any person is damaged by the laying out or altering any highway. Ibid. Proceedings in case a way, or in estimating the damages. The same statute further provides, that if any person be damaged in his property, by the laying out or altering any highway, the town or district where the same is, shall make such person or persons reasonable satisfaction, according to the estimation of the committee, or the major part of them, who laid out the same. And if any person find himself aggrieved by the doings of the said committee, in locating said way, or in estimatany person be aggrieving damages, he may apply to the court of general sesed by the doings of the committee in locating sions of the peace, provided such application be made to the said court that shall be held in the same county, next after the acceptance of such return; and said court is em. powered to hear and finally determine the same by a jury, under oath, to be summoned by the sheriff or his deputy for that purpose, if the person complaining desires the same; or by a new committee, if the person complaining, and the agent for the town or district in which the way is laid out, can agree thereon. And if the jury or committee agreed upon as aforesaid, who are to be under oath, shall not alter said way, or increase the damages, the person complaining shall be at all the costs incurred on that occasion, to be taxed against him by said court, otherwise such costs shall be paid by the county, and the increase of damages shall be paid by the town or district in which such way is located. The same statute further provides that the verdict of such jury, or the report of the committee agreed upon, as aforesaid, being made under their hands and seals to said court, and by them accepted and recorded, shall conclude the person or persons complaining, with respect to such damages, and also finally fix and determine the place of such road or highway. The same statute further provides that the court of general sessions of the peace may order the payment of such sum or sums of money as shall be assessed in damages, to be paid by any town or district, out of the treasury thereof; and in default of payment, after a reasonable time, may levy the same by warrant of distress, upon the personal property of the inhabitants, to the use and benefit of the person or persons to whom the damages may be awarded. By an additional statute it is provided as follows: Stat. 1802, c. 135, s. 1. to be summoned. 1. That whenever a jury may be ordered by the court of general sessions of the peace, in any county, to hear and determine the complaint of any person or persons, aggrieved by the doings of a committee of said court, in locating a highway; or by the doings of the selectmen of any town, in locating any private way, or estimating damages occasioned by such locations in pursuance of the statute of 1786, c. 67, such jury shall be summoned By whom the jury is to attend by the sheriff of such county or his deputy; or if he, or either of his deputies, be a party or interested, by a coroner of said county; which jury shall be selected in manner following, viz. The officer who shall be duly authorized by said court shall make application to the selectmen of two or more disinterested towns in said county, who shall draw out of the jury-box of the supreme judicial court of their respective towns, so many jurors as such officer shall require, not exceeding ninc from any one town ; and if, by accident or challenge, there shall happen not to be a full jury, said officer shall fill the pannel, de talibus circumstantibus, as in other cases. 2. If the right or interest of any complainant in or to the real estate alleged to be damaged by the laying out of such way, shall be denied by the town, district or corporation complained against, the jury summoned as aforesaid, shall have authority to consider and determine such question of right and interest, so far only as respects the damages of said complaint. How the jury is to be selected, Ibid. s. 2. The jury authorized to determine certain questions of right. 3. When two or more have occasion to apply to any Ibid. s. 3. court of sessions at the same time, for joint or several Two or more persons damages, occasioned by the laying out of the same high- may join in one complaint. way, they may join in the same complaint, and their respective claims of damages shall, in that case, be considered and determined by the same jury, and the costs |