13. Thus, having erected a bridge, they may determine the thread of the river to be the dividing line, and apportion the expense accordingly, without fixing any monument to show the thread of the river. Ibid.

14. It seems, an adjudication that the public convenience and necessity require that the road prayed for should be located in part," in order to be valid, must designate the termini; otherwise, a location, though made in due form, over part of the route prayed for, will be void. — Inhabitants, &c. v. County Commissioners, &c. 2 Met. 185.

15. Under Revised Statutes, c. 24, § 13, authorizing a jury to make any alterations prayed for between the termini of a highway, laid out by county commissioners; a jury cannot make an entire new line of way from one terminus to the other; and a mandamus will not be granted to the commissioners, to summon a jury for such purpose, on their dismissing a petition therefor of parties aggrieved by the laying out of a highway. - Gloucester v. County, &c. 3 Met. 375.

16. Under St. 1827, c. 77, upon petition for a new highway, the county commissioners may lay out an intermediate part only of the road prayed for. - Princeton v. County, &c. xvii. 154.

17. Under Revised Statutes, c. 24, § 13, a jury may alter a highway, located anew by the county commissioners. State, &c. v. County, &c. 1 Met. 437.

18. Where individuals petition the county commissioners for a new road, and they order that no further proceedings be had thereupon, whether the petitioners, merely as such, may apply to this Court for a writ of mandamus, qu. Wellington, &c. xvi. 87.

19. Where the decision of the Court of Common Pleas, adjudicating upon the acceptance of a verdict as to the laying out of a highway, is founded on matter of law apparent upon the record, an appeal lies therefrom. - Lanesborough v. County, &c. xxii.

278.

20. In the location of a highway by county commissioners, the town through which it passes is a party; and, as such, may apply for a jury to alter the location, and appeal from the decision of the Court of Common Pleas, adjudicating upon the acceptance of the verdict. Ibid.

21. How far a jury may alter a location made by commissioners, qu. Ibid.

22. A town having been ordered by the county commissioners to make a new road, the town by vote appointed a committee "to let out and superintend the making" thereof, and such committee

contracted accordingly with one A. A. made such part of the road as he alleged that he was bound to make, and refused to construct any more; whereupon the committee, on their own authority, made a new bargain for the finishing of the road, and paid the agreed price. In an action for reimbursement by the committee against the town, held, the town vote gave the plaintiffs a special authority, which was exhausted by the making of the first contract, and superintending the construction of the road; that, upon A.'s breaking his contract, it was for the town to enforce or waive it, and the plaintiffs could not legally contract for completion of the work; and, therefore, that the action could not be sustained. Keyes v. Westford, xvii. 273.

23. The contract with A. was for a better, but more expensive road, than that ordered by the commissioners. Held, the reference to such order restricted the power of the plaintiffs; that by their contract with A. they exceeded their authority; and that the new contract was founded upon a similar excess of power, and, therefore, not binding upon the town. — Ibid.

24. It seems, the town itself could not legally construct a more costly road than that prescribed by the commissioners. Ibid.

25. In March, 1833, the complainants, in connexion with other proprietors of land in Boston, presented a memorial to the mayor and aldermen, representing that a new street over their lands was required by the public convenience, and that, to promote this improvement, they would relinquish their interest in the land for the street, provided it should be opened during that year, according to a certain plan. In April, the mayor and aldermen voted to appropriate a certain sum for the expenses of a street according to the plan, to be paid, when the street should be made and fitted for paving, to such person or persons as the memorialists should designate, and to be in full for all the expenses, as well as for all damages, to be incurred by the city in laying out and making the street. In June, the complainants addressed a letter to the other memorialists and sent a copy to the mayor, explaining their proposition as an offer to relinquish all claim of damages for their land, but not their claim of incidental damages for removing and repairing their buildings. In October, the mayor and aldermen passed an order, laying out the street according to the plan, and during the year it was finished. Soon after the passing of this order, the complainants protested against the making of the street, without a previous agreement relating to an indemnity, and gave notice that they would hold the city responsible for all damages. Held, the proposition of the memorialists was a continuing offer during the year, unless revoked or rejected; that the April vote was not a rejection, but a distinct proposition on the part of the city; that the offer of the memorialists was, in its nature, several, and, until

accepted or rejected by the city, each proprietor might revoke or modify his offer, independently of the others; and that, by laying out the street, the city, in legal effect, accepted the complainants' offer, as modified by their explanatory letter, which made it a contract, mutually binding, whereby the city became entitled to the land, and the complainants to incidental damages for removing and repairing their buildings. Foster v. Boston, xxii. 33.

C. Town-ways.

1. Under Revised Statutes, c. 24, a town-way may legally be laid out by selectmen and accepted by the town, though the warrant for the town meeting, at which the way is accepted, is dated and issued before the way is laid out. Harrington v. Harrington, 1 Met. 404.

2. Selectmen laid out a town-way over land of A., and awarded him damages, to be paid by B. before the road should be opened. The town voted to accept the report of the selectmen, on condition that B. should build the road and pay all expenses of the same, and defend the town against all prosecutions." The damages awarded to A. were tendered to him, before any entry upon his land. The defendants having entered to construct the road, A. brings an action against them. Held, the way was legally established, and the action did not lie. Ibid.

3. The mere fact that part of a town-way, laid out along navigable water, is below high-water mark, is no defence to an indictment for levying a nuisance, in that part of the way which is above high-water mark. - Gloucester v. County, &c. 3 Met.

375.

4. The vote of a town, approving a town-way, is not rendered invalid by the fact, that, prior to the passage of such vote, some of the individual inhabitants subscribed a certain sum towards the cost of the road, and that this was known to the town. Copeland v. Packard, xvi. 217.

5. The county commissioners, having adjudged a town-way to be of common convenience and necessity, located it, and made their return, which was duly recorded. They then ordered the town to complete the way, allowing the plaintiff, the land-owner, to remove all property not requisite for the making of it, within a certain period. After the expiration of this time, but before the road was constructed, the defendant broke down a fence in order to pass over it. Held, the mere adjudication of the commissioners did not constitute the road a town-way, and that the plain

tiff might maintain trespass against the defendant. Loker v. Damon, xvii. 284.

6. It seems, before the expiration of the time above stated, the town could not break down the fence, to construct the road, if needed to protect growing crops. — Ibid.

7. After a line for a town-way had been run across the plaintiff's land by the selectmen, one of them informed him, that they were laying out a road across his land, showing him the course of it; but a new line was run back on the plaintiff's land, which completed the survey. The plaintiff was present at the town-meeting when the doings of the selectmen were approved, and objected that sufficient damages were not allowed to him. Held, even if the law required notice by the selectmen to the plaintiff before fixing upon a location, or reporting to the town, there was sufficient notice in this case; and that, in regard to the doings of the town, the plaintiff was precluded from denying his having received sufficient notice, by the fact of his being present at the meeting and not making any objection. - Copeland v. Packard, xvi. 217.

8. It seems, a town-way may be proved by prescription, or by the presumption arising from use and enjoyment. Stedman v. Southbridge, xvii. 162.

D. Rights of land-owners in regard to public ways; and claims for damages upon the laying out thereof.

1. The owner of the soil traversed by a town-way cannot maintain trespass against one who obstructs it. - Mayhew v. Norton, xvii. 357.

2. One owning the soil of a street, in a populous town, may lawfully erect buildings and fences on the line of the street, with doors and gates which, when opened, will swing over it. So, in constructing such buildings, he may place the building materials and the soil dug from the cellar in the street, not improperly obstructing it, and removing them in reasonable time; or spread earth on the street, for the purpose of improving it as a way; or allow horses and carriages occasionally to stand in the street against or near a house. O'Linda v. Lothrop, xxi. 292.

3. An individual or company, authorized by law to make a road, is impliedly bound, in carrying it over watercourses on private land, to make bridges, culverts, or other effectual means for carrying off the water, and to keep them in repair. Subject to the

same liability, they may also divert the watercourse, if necessary. -Rowe v. Granite, &c. xxi. 344.

4. The circumstances of each case must determine the extent of these implied powers. — Ibid.

5. The defendant erected a warehouse, projecting several feet into the street, and beyond the plaintiff's warehouse, standing near on the line of the street, whereby the latter was obstructed from the view of passengers, the travel diverted from it, it became less desirable as a place of business, and the rent was reduced. Held, the plaintiff had suffered a special injury from a public nuisance, which gave him a right of action against the defendant - Brooks v. Boston, xix. 174.

6. The owner of land abutting on a street in Boston, laid out as a town-way, (in contradistinction to a highway or county road,) set his building back from the line of the street, thus leaving an open strip of land, which was used by the public as a part of the street for more than forty years. Held, the public or the city had acquired a right of way over this strip, and, upon a new street being laid out over it by the city, the owner of the soil was not entitled to damages. Valentine v. Boston, xxii. 75.

7. Upon a claim for damages in such case, the plaintiff requested the judge to instruct the jury, that a town-way could be acquired or established only by laying it out for that purpose by virtue of the statute; but the judge, not distinguishing between a town-way and a highway, charged, that a way might be acquired by dedication or user, that twenty years' use of the land as a way would raise a presumption that it had been dedicated by the owner to the public for a way, and that forty years' use would give the public a right of way over it, as effectually as if laid out for a way agreeably to the statute. Held, these instructions were correct, and all that the case demanded. - Ibid.

8. Soon after the commencement of a lease for three years of a store or warehouse in Boston, wherein the lessee covenanted to pay the rent during the term, and leave the premises in good repair; the city took the front part of the land, and cut down the front wall, in order to widen the street. The building remained thus about two years, when the landlord took it down, and built a new store on the same spot, but diminished by the strip of land taken by the city. Before the wall was taken down, the lessee removed into another store, and remained there till the new one was built, when he removed back to the new one. In a complaint by such lessee against the city for damages, held, he should recover the expenses of removing his goods from and back to his original place of business, for the sums which he might have earned while thus removing, and a reasonable sum for the rent of another store,