Brownell v. Palmer , 22 Conn. 107 ( 1852 )

Hinman, J.

The defendants, selectmen of the town of East Haddam, did the acts complained of in the declaration, for the purpose, as they claimed, of repairing one of the highways of that town; and the case turned upon the question, whether the locus in quo wras highway, or whether it was the unincumbered estate of the plaintiff. Anciently, there had been a highway there, but it had not been in use, as such, at any time since 1823; and the plaintiff claimed it was discontinued, by the selectmen in 1825, and the discontinuance approved by the town, at an adjourned town-meeting in November of that year. On this point a question arose, whether the ancient highway was one originally laid out by the selectmen; if it was not, then the selectmen had no power to discontinue it in 1825. There was no record of any survey or laying out of the road, either by the selectmen, or the original proprietors of the town, or by the county court. Nor was there any evidence of the dedication of the premises to the public use, as a highway, by any owner or proprietor of the soil; all that appeared was, that from as far back as any living witnesses could remember, up to 1823, when it ceased to be any longer used as a highway, the place was a part of the main road, from the north part of East Haddam, to the town of Lyme.

Under these circumstances, the judge at the circuit was of opinion, and instructed the jury, that if the selectmen in 1825, expressly discontinued the highway, as one originally laid out by their predecessors in office, and there was no evidence, showing that it had not so been laid out, and such discontinuance had been approbated by the town, and had been acquiesced in by the public, and all concerned, for more than twenty years, then the jury would have a right to presume, that the highway was one which the selectmen had power to discontinue, and their doings were legal.

We think this instruction was correct. It may be admitted that, if it had been shown that the ancient highway had been established, since the year 1773, when it was first required, that the acts of the selectmen, in laying out highways, should be approved by the town, in order to be valid, it would have been necessary for the plaintiff to show, that it had been originally laid out by the predecessors of the selectmen of 1825; because, in that case, the doings of the town, in approving of the survey and lay-out by the selectmen, would appear upon the records of the town, and the absence of any such record would be strong presumptive proof, that the road was laid out in some other way. In the present instance, the proof went back as far as any living witnesses could remember, and it was found impossible to show when the road commenced. Perhaps it would be proper to presume, from this circumstance alone, that the road in fact had its commencement before 1773. But, whether so or not, we think this fact, in connection with the admitted fact, that there was no record evidence, of any kind, of the original lay-out of the road, proved, that it was not laid out by the county court, or by the original proprietors of the town, or by the selectmen since the year 1773; becausé in either of these cases, there would have been record evidence of its origin. The road then must have been dedicated to the public use, as a highway, by some owner of the soil, or it must have been laid out by the selectmen, at a time when they could legally do so, under such circumstances, that no record of their proceedings would probably be preserved for any considerable time ; and so, no presumption would arise against the claim or supposition, that it was so laid out, from the fact that we find no record of the proceeding.

But long previous to 1773, the selectmen were authorized to lay out highways, and the ancient statutes, empowering them to do so, did not require their proceedings to be reported to the town, or to be recorded. Statutes, ed. 1750, p. 381. Ed. 1715, pp. 50, 51. Peters, J., 3 Conn. R., 98.

If this road was first laid out by the selectmen, before they were required to lay their proceedings before the town, there would of course be no regular town record of it; and the survey which it would be necessary for the selectmen to make, being a loose paper, only preserved on file with the other papers in the custody of the selectmen, it could hardly be expected to be preserved for any great length of time; and after a lapse of more than half a century, which has now intervened, considering the manner in which the papers of selectmen, generally, are even now kept, no one could reasonably hope or expect to be able to find it.

It is true, that the road might have been dedicated to the public use, by some individual owner of the soil; but this, though a possible manner in which a highway may have originated, is by no means the most probable manner; and if the selectmen of 1825, acting only upon the evidence before them, assuming, at the same time, that it was only such as we have here indicated, came to the conclusion, that this ancient highway was one originally laid out by their predecessors, we should hardly be disposed to differ from them. But it is obvious, that the selectmen of 1825 might have had evidence, other than that to which we have alluded, and which the lapse of intervening time has destroyed, that satisfied them, that the road was originally laid out by their predecessors in office. It is in cases of this sort, that the maxim of law applies, that acts of an official character, which require the concurrence of official persons, are presumed to be rightly done, until the contrary appears. It is said, that this maxim does not apply, to give jurisdiction to the selectmen of 1825; but their jurisdiction must be shown, by first showing, that the ancient road had been laid out by their predecessors ; and, that then the maxim will apply, to supply the proof of collateral parts, necessary to give validity to the act.

If this was a recent transaction, not supported by the possession of the plaintiff, exclusive, and adverse to any supposed right of the public, at the place in question, there would, doubtless, be force in this suggestion; but, in cases where the original possession can not be accounted for, except upon the idea of a grant, or relinquishment of the right, by a third person, or even by the public, it is correctly said in Best on Presumptions, 145, “ that there is hardly a species of act or document, public or private, that will not be presumed, in support of possessionand the, cases to which he refers, fully sustain this proposition.

The maxim itself, it is said, is nothing more than the statute of limitation expressed in a different form, and applied to other subjects. 2 Greenl. Ev., § 20. After the lapse of twenty years, it has been applied to the warnings of the meeting of a corporation. 1 N. H. R., 310. And in 3 N. H. R., 340, 4 id., 71, the court say, that in all cases where enough of the proceedings are shown to render it not improbable, that they may have all been regular, “then, long and quiet possession may be left to a jury, as evidence of particular facts, the ordinary proof of which is not to be found.”

In Massachusetts, after twenty years’ possesion of real estate, held under an administrator’s sale, the court left it to the jury to say, whether the administrator took the oath, and posted notices of the sale, according to the directions of his license or order to sell. Gray v. Gardner, 3 Mass. R., 399. And our own court held, (Bryan v. Hinman, 5 Day’s R., 211) that it was proper to submit the question toa jury, to find, from lapse of time, and other circumstances, whether notice of an administrator’s sale of real estate, had been given according to law. It has also applied this maxim to the acts of an officer, in setting off land on execution. Booth v. Booth, 7 Conn. R., 350. Brace v. Catlin, id., 358, n. Ives v. Lyon, id., 505. We think, therefore, that the course taken upon this question, by the judge on the circuit, was the proper course. Whether he would have been justified (from the mere fact of the disuse of the old highway, for twenty years, accompanied by an exclusive appropriation of it to the private usé of the plaintiff, without any evidence, going to show that it had been discontinued, in some particular way,) in submitting it to the jury to find, whether it had not been legally discontinued, in some way, is a question which it is not necessary to determine. Had it been a private right of way, acquired by prescription, it would have been lost by such a non-user, in fifteen years. We are awarOj however, that prescription, as such, does not run against a public right, and that statutes of limitation, unless made for that purpose, do not apply to public rights; and it has even been said, that no length of time, during which a highway may not have been used, will prevent the public from resuming the right, if they think proper. Gibbs, J., in Rex v. St. James Munton, 2 Selwin N. P., 1362; and in Vooght v. Winch., 2 B. & A., 662, it was held, that twenty years’ possession of navigable water would riot have the effect of preventing the king’s subjects from using it as such. Still it was said, by our own court, in Beardslee v. French, 7 Conn. R., 125, that the non-user of a highway, for many years, was prima facie evidence of a release of the public right to the owner of the soil. The court undoubtedly went upon Lord Mansfield’s principle, of quieting the possession. He said, that “ courts had thought that a jury should presume anything, for that purpose.” Cowp., 215, 102. And, in favor of very long possession, this, as we have already said, is true; but whether twenty years are sufficient for this purpose, we will not attempt to determine, being satisfied with the ground taken by the judge on the circuit.

The defendants objected to the admission of the vote of the town, discontinuing, as the plaintiff claimed, the old highway in question, on the ground, that there was no evidence, that the meeting was warned, for the purpose of acting upon the subject matter of said vote. The vote was passed at an adjourned'town-meeting, held on the 21st day of November, 1825. The annual town-meetings, in all our towns, are, by statute, required to be held in the months of October, November or December; and the universal practice is, as we believe, to hold them, either in the first or second weeks of October or November; we presume, therefore, that the adjourned meeting, at which this vote was passed, was a continuation of the annual town-meeting of that year. The statute, then and now in force, authorized the selectmen, with the approbation of the town, to discontinue any highway laid out by them, or their predecessors in office. Stat. 1824, p. 227.

The selectmen, then, had jurisdiction over this subject, it being found to have been a road laid out by their predecessors. Now, the selectmen .act, in the first instance, and then lay the matter before the town. They act partly in the capacity of public agents, in this matter, and, to a certain extent, as the agents of the town. They too, as town agents, are the individuals who are required to warn town-meetings, and the jury have found, that, with the approbation of the town, they did discontinue this highway. But, before the town could give such approbation, the meeting must have been warned for the purpose, and it was the duty of the selectmen, to see that it was so warned. Can it be supposed, that they would neglect such a duty as this ? Or that they would lay such a matter before a meeting, which they had themselves warned, without first taking the steps necessary to render the action of the town legal 1 The selectmen discontinued the road, in June of that year. This was several months before the action of the town. Of course, they knew, when they warned the meeting, that fall, that the matter required the action of the town : we think, therefore, they are entitled to the presumption of having acted correctly, until the contrary is shown.

Again, it is claimed, that the vote of the town does not show, upon its face, what highway was discontinued: that the vote “to accept of the discontinuance of an old highway, near the grist-mill, by the stone factory,” is not specific enough to show that this road was the one intended. But the vote, on its face, refers to another paper, or, as was the case here, to other papers—“the discontinuance of an old highway.” This discontinuance was in writing, and was the act of the selectmen; it must, therefore, be taken, together with the vote, and as a part of it, and thus taken, the vote is specific enough. It is true, that in this case, it was necessary to make out the contents of this discontinuance, by parol, because the paper itself was lost,—but lost documents may always be supplied, by proof of their .contents.

It was claimed again, that the vote referred only to another portion of this old highway, in regard to which the discontinuance was on record; and the jury were not instructed to consider, whether it embraced the part in question. This objection was not made on the trial, nor was the court asked to present any such question to the jury. The claim on the trial was, that the plaintiff ought not to be permitted to show that the discontinuance was before the town-meeting, when it passed the vote alluded to, on the ground that it was an attempt to prove, by parol, the act of the town, and so to eke out a part of the vote, by parol. This objection, if well founded, would have been fatal to the vote. But it is not well founded. There was no necessity, to spread out upon the town-clerk’s book of entries, the papers to which the vote referred, and which formed a part of the vote itself: these papers were as much a part of the record, as if they had been copied in full. It was the duty of the/ clerk, to keep them on file, but, for some reason, he delivered the one in question, to the owner of the soil. This, though improper on the part of the clerk, did not destroy it, as a part of the record,; it still remained a file, to which the clerk’s minutes referred, and being now lost, its contents may be proved by parol. The vote, so far as the clerk’s minute shows it, is general in its terms, and applies to the whole'of the “old highway, pear the grist-mill,” not to a part of it. The only question then was, whether the “discontinuance” to which it refers, was of the whole of the old road, or only of a part of it. It happened, that the selectmen acted at different times, discontinuing one part of it in January, and the other part in June : but together, these papers were a discontinuance of the whole. The town-meeting might have acted upon them separately also, but it chose to act upon the whole at once. We see no objection to this ; and showing that the paper was before the meeting at the time, is simply applying the vote to its proper subject matter.

The defendants, before they committed the acts complained of, on the supposition that the locus in quo was highway, as selectmen of the town of East Haddam, gave notice to the plaintiff, in conformity to the statute, to remove the obstructions by him placed upon the premises, and he neglected and refused to do so. The motion does not show, specifically, on what ground he so refused. As he had been in the exclusive possession of the premises, for more than twenty years, occupying there in a manner wholly inconsistent with the claim, that there was a highway there, the natural inference would be, that he was occupying as owner, and as such, claiming a right co-extensive with his occupation. Still, it is insisted, that, because he did not inform the selectmen, that the road had been discontinued, he is es-topped now from claiming damages for the trespass. To this claim, we can only say, that we know of no principle of law, that makes it necessary for a party, in possession of property, to give a history of his title, to every intruder who may choose to contest it with him; and it does not seem to us to make any difference, in this respect, that the party claiming the benefit of such a rule, happens to be a board of selectmen, claiming to act in the discharge of ijs official duty.

As we find no error in the proceedings of the superior court, we do not advise a new trial.

In this opinion, the other judges concurred, except Waite, J., who tried the cause, in the court below, and was therefore disqualified, and Storrs, J., who was absent.

New trial not advised.