Larry v. Lunt

Shepley, C. J. —Upon the facts presented by the agreed statement, the defendant will find no justification for his passing across the farm of the plaintiff, unless he had acquired a right to do so, upon an existing way, established by usage, or laid out by the selectmen, and accepted by the town of Peru. •No town way can be considered as established by its being used as a way, when such use appears to have had its [71] origin and continuance by virtue of a legal location, and when such way appears to have been legally discontinued. A way appears to have been laid out by the selectmen of that town on June 15, 1825, across the farm now owned by the plaintiff, and to have been accepted by the town at a meeting holden on September 12, 1825. The warrant contained an article to accept any roads laid out by the selectmen and reported at that time. It does not appear by the return of the selectmen, that the owners of the land were notified. There appears to have been an acquiescence in its location and use, for more than twenty years, and the presumption of law is, that due notice was given. Harlow v. Pike, 3 Greenl. 438. No fact is presented tending to rebut that presumption. The return of the constable upon the warrant does not state how he notified the qualified voters. It does not appear, that the town had agreed upon any mode, in which it should have been done. There appears by the record, to have been a meeting at the time and place, at which business was transacted. The presumption therefore is, that the voters had been summoned in such manner as the town had agreed upon. Ford v. Clough, 8 Greenl. 334. A town meeting appears to have been summoned to be holden on March 5, 1849, by virtue of a warrant containing an article to see if the town would discontinue this way, and at the meeting a vote was passed to discontinue it. It is not perceived that it was not legally notified, as required by statute, c. 5, § 6. The town was authorized to discontinue such a way by statute, c. 25, § 30. The defence failing, the defendant is to be defaulted. Wells, Tenney, Howard and Appleton, J. J., concurred.