Stat. 1786, c. 81, s. 8. Surveyors to assign each person, within his limits, his propor tion of work, etc. Notice to such persons. Form and manner of notice. Ibid. ence to such notice. VI. Power and duty of surveyors, in case towns neglect to raise money for the repair of highways. If any town shall neglect to vote or agree upon a sum to be assessed for the express purpose of repairing and amending the highways and town-ways, or shall not otherwise provide for effectually amending and repairing such ways; each shall assign to the several persurveyor sons in his limits, their rateable proportion of days' work, and of cart, team or plough, according to his real and personal property, as near as he can, and shall assign certain days for amending and repairing the ways, having regard to the season of the year, and give notice thereof to the persons in his limits, upwards of sixteen years of age, and liable, by law, to be taxed, six days at least before the time assigned (except in extraordinary cases) to attend the service with suitable tools, and with carts and teams (if any they have) the notice to be in writing and delivered the person, or left at his usual place of abode. And if any person being thus notified, shall make default of attending and working, by himself, or other sufPenalty for disobedi- ficient person in his stead, or with his cart and team, as he shall be appointed and assigned, he shall forfeit and pay five shillings for each day's neglect, and for default of his cart and team, with a driver, ten shillings a day, and in that proportion for a longer or a shorter space of time, one moiety to the use of the town, to be expended on the highways and town-ways, as the selectmen shall order, and the other moiety to the use of the surveyor, to be recovered by complaint, before any justice in the same county. Provided, the same be made in one year after the forfeitures are incurred, and not afterwards, according to the form prescribed by the act. Recovery and appropriation of the penalty. Time of prosecution. Form of complaint. The form of this complaint may be seen in the appendix. In which prosecution, the surveyor may be admitted as an evidence, as to the time and manner of notice, and the quantum of labour assigned to the adverse party. Stat. 1786, c. 81, s. 8. Surveyor a witness. Ibid. Masters, parents, and guardians answerable for minors. Ibid. s. 9. Warrant of the jus And the penalties incurred by servants or minors, shall be recovered of the parents, masters, or guardians, under whose immediate care and control they may then be. Upon which complaint, the justice may issue a warrant to some sworn officer, to notify the respondent, at a time and place therein mentioned, to appear and shew cause, tice. (if any he has,) why a warrant of distress should not issue. Which warrant may be served by reading the same with the complaint annexed, to the respondent, seven days at rant. least before the day assigned for a hearing, or leaving an attested copy thereof at the respondent's usual place of abode, seven days or more before the day of trial. Service of the war And if the respondent, being notified as aforesaid, shall bid. not appear, or appearing, shall not in the opinion of the Appearance of the justice, (from whose determination no appeal shall be respondent. made,) shew sufficient cause, he shall enter up judgment thereon, that a warrant of distress issue for such, or so much of the sums prosecuted for, as shall appear forfeited and costs. Judgment. Warrant of distress. Ibid. Defence of the res But in case the respondent shall make it appear, that he was unreasonably assessed, or that he was not duly notified thereof, or shall make any other legal or suffi- pondent. cient excuse to exempt him fully from the forfeitures, the justice shall enter up judgment that the respondent Judgment. be acquitted and discharged from the forfeitures for which he is now prosecuted, and that he recover against the complainant his costs. The form of this warrant is prescribed by statute and may be seen in the appendix. Costs. Form of warrant, see Append. No. 2. Stat. 1795, c. 58, s. 4. Further power and surveyors. So, when any town, district or plantation, shall neglect to raise money, for the purpose of making and repairing the highways and town-ways, it shall be the duty of the duty of several surveyors in such towns, to cause so much labour to be done on the said ways (in their respective districts, Stat. 1786, c. 81, s. 4. Ibid. s. 1. What incumbrances may be removed. Ibid. Exception as to water-courses. before the first day of July, as shall amount to one half at least of the expenses of repairing said ways) the year next preceding. VII. Power and duty of surveyors, when the sum assessed for the repair of highways is insufficient. When the sum appropriated and assessed for the repair of highways and town-ways, in the limits of any particular surveyor, shall not fully answer, or be insufficient for that purpose, it shall be lawful for the surveyor, with the consent of the selectmen, or the major part of them, where such deficiency happens, to employ such of the inhabitants of the town, upon the repair of the ways in his limits, as shall make up that deficiency; and the persons thus employed shall be equitably paid out of the town treasury therefor. VIII. Power and duty of surveyors relative to incumbrances in highways. Surveyors shall have full power and authority to cut down, lop off, dig up, and remove all sorts of trees, bushes, stones, fences, rails, gates, bars, inclosures, or other matter or thing that shall any way straiten, hurt, hinder, or incommode the highway or town-way, and also to dig for stone, gravel, clay, marle, sand, or earth, in any land not planted or inclosed, and the materials thus dug up, to remove to such place or places in the highways, for the repair and amendment thereof, as they shall determine necessary. Provided always, that no surveyor of highways shall cause any water-course occasioned by the wash of any highway or town-way, to be so conveyed by the side of such highway as to incommode any person's house, store, shop, or other building, or to obstruct any person or persons in the prosecution of his or her business or occupation, without the approbation and consent of the select men of such town or other place, signified, in writing, to such surveyor. And any person or persons who may consider him or herself to be aggrieved by such water-course, may complain to the selectmen, of such town or other place; and the selectmen, on receiving such complaint, shall proceed to view such water-course so complained of, and after attending to the circumstances of the same, shall, if they think it reasonable, direct such surveyor to alter the said water-course in such way and manner as they shall think just and proper. Ibid. Ibid. And when the highways are blocked up, or incumbered with snow, the surveyors shall forthwith cause so much thereof to be removed, or trod down, as will render the snow. roads passable. Incumbrances by So, all such incumbrances may be removed in the man- Stat. 1796, c. 58, s. 8. ner the same might be done in any town or district who shall neglect to vote or agree upon a sum for the express purpose of repairing the highways and town-ways: Provided, that any town or district shall agree upon that mode of removing such incumbrances in the month of March or April annually, any law to the contrary notwithstanding. viso. pro No surveyor or other person, shall remove or pull Ibid. s. 11, under down any fence which may be lawfully set up, or erected upon, or across any way, for the purpose of preventing Fences to prevent the the spreading of infectious disorders.(2) IX. Penalty for surveyors' neglect of duty. Each surveyor of highways who shall accept the said trust and shall neglect his duty therein, shall forfeit and pay for each neglect the sum of three pounds, one moiety to him that will prosecute therefor, and the other moiety to the use of the town whereof the delinquent is a sur (2) Surveyors of highways, as such, have no authority except as to highways on land. Austin v. Carter, 1 Mass. Rep. 231. spreading of infec tions, not to be prostrated. Ibid. s. 10. Ibid. s. 1. Ibid. veyor, to be recovered by action of debt, before any justice of the peace for the same county. X. Liability of surveyors, where a town is indicted for defect of highways. In case the inhabitants of any town shall be fined upon the presentment of the grand jury, or upon the information of the attorney-general, or the person acting for the government in his absence, for a deficiency in the highways, the surveyor, within whose limits the deficient ways are, shall be liable to refund the same, with all costs, to the said inhabitants, upon an action of the case to be brought therefor. Or the surveyor of highways may be prosecuted on presentment or information as aforesaid, and fined for any deficiency that may arise in his limits.(3) And the inhabitants of any town, merely as such, shall not be excluded from being witnesses, upon any prosecutions upon this statute, upon a supposition of being interested as members of the corporation. (3) A surveyor of highways may recover against his town damages happening to him through a defect in the highways within his own district, unless the defect arises from the surveyor's own neglect: Wood v. Waterville, 4 Mass. Rep. 492. |