Todd v. Inhabitants of Rome , 2 Me. 55 ( 1822 )

Mellen C. J.

delivered the opinion of the Court as follows »

In this case a nonsuit was entered by consent of parties, and all the evidence has been reported; and we are to decide upon it in the same manner as though the whole had been presented upon a statement of facts.

In the argument several questions have been discussed which it is not necessary for us now to decide. The onty points demanding attention are — whether a town way was legally laid out and established at the time and in the place contended for by the plaintiff; — and if not, — whether a road or highway has been in fact opened and used in such a manner and for such a length of time as to render the town liable for the damages done to the plaintiff’s horse by means of the defect in the bridge situate on such alleged road or highway.

As to the first of these points, there seems to be no doubt upon the facts before us. In the case of the Commonwealth v. Merrick, 2 Mass. 529, it was decided that the doings of the selectmen relating to the laying out a town way must be recorded; otherwise the way is not legally established. In the present case that was not done. What those doings were is but imperfectly known; nor does it appear that they made and signed ány location of the way. The way then clearly was not a legal town way, ovprivate way; and cannot be considered as such, unless in an action or prosecution against such town. It is urged by the plaintiff’s counsel that the town cannot object to their own proceedings on account of their irregularity; and that as against them the location and acceptance of the way are to be considered legal and binding. To this it may be replied that any of the owners of the land through which the supposed way is laid could have maintained an action against the survey- or for opening and making it; — because such owner certainly might object to the, irregularity of the proceedings, even if the town could not. Plow then could the town be liable, in any form, for the deficiency of such supposed road, if they had no legal right to open and make it without the consent of such owner ? Their duly cannot be broader than their right. It is true if the owners of the lands over which the supposed i;oad has been laid, had assented to it, eyen though it was not located exactly in the course described in the return and acceptance pf it,'and the public had been permitted to use it according to its practical location, without molestation or objection, and such consent, acquiescence and user had been continued for twenty years, or perhaps for a shorter time; — these circumstances might essentially change the ground, and be considered sufficient to give the town a right to repair the way, and subject them to liability to repair, and to the legal consequences of neglecting their duty. But such is not the proof in the present instance.

It has, however, been urged that the way must be considered as a legal one, until it shall be declared void by some legal process; in the same manner as county roads which have been laid out are to be deemed, and all the proceedings relating to their location valid, however erroneous and imperfect they may be, until quashed on a writ of certiorari. The cases are in no wise parallel. No certiorari lies to set aside the doings respecting the location and acceptance of a town way. Hence if they are not legal, they are void, and not merely voidable.

As to the second point; — to prove that a way defacto existed as above mentioned, the plaintiff relies on the circumstance that the road was opened and made in the year 1815 by the survey- or of the town of Rome, — and that he had at different times expended the money of the town in repairing it, by permitting the persons living on the road to work out upon it the amount of their highway taxes, — and that this was done by the consent of the assessors, verbally given. But, opposed to this is the fact that ever since the year 1815 this supposed road has remained, in all parts of it, without any fence on either side, and several of the owners of the adjoining lands have extended their line fences across the road.; so that no persons could pass or repass without removing bars in three or four places, We consider this as clearly shewing a controling power, exercised by the owners of the lands, over all the supposed claims of the public, utterly inconsistent with the nature of a highway or town way defacto; and are satisfied that the nonsuit ought to be confirmed. Motion to set aside the nonsuit overruled—

And judgment for defendant,