Baker v. Runnels

Weston C. J. If the existence of a town way is questioned, and it appears that the requirements of law have not been observed in laying it out, it is treated as void ; towns having upon this subject only a special and limited power. But the Court of Sessions, to whom county commissioners have succeeded, had general jurisdiction in relation to roads. Hence an adjudication of theirs has been respected as operative, until annulled or vacated upon certiorari. We think great inconvenience would arise, in permitting an inquiry as to the regularity of their proceedings, to be made collaterally. It has never, that we are aware of, been attempted or sustained in our practice. We are of opinion, therefore, that the objections taken to the doings of that court at the trial, were properly overruled. Another point raised is, that the road was discontinued, by the operation of an additional act in regard to highways, statute of 1331, ch. 500, sec. 9. That section provides, that a road, which shall not be opened within six years from the time, when it shall have been required to be opened, shall be taken and deemed to be discontinued. It may be presumed that this long neglect on the part of the town, without complaint, is full evidence that'such road was not required by the public convenience, notwithstanding the adjudication of the court. The road in question was opened, with the exception of a short distance, where, however, the trees ■were felled and cut up by a surveyor of the town ; but was afterwards neglected in consequence probably of ahold pathway, which was used as a substitute. The town was indicted for a failure of duty in regard to this road, seven years after it was laid out. They did not interpose the objection now set up, but sub 238 mitted to a default, and to a fine of five hundred dollars, more than a year after the passage of the law of 1831. It does not appear to us to present a case under that statute. The road, that is the whole road, did not remain unopened, upon any construction. The neglected part was not made, but it can hardly be said not to have been opened, and held out to the public as a road, by the official act of the surveyor. The road must be regarded as having been once legally established. If the plaintiff would avoid it, he must show clearly that it has been vacated by the operation of the statute. And we do not feel warranted in determining that this has been done. Judgment on the verdict.