Burns v. Annas

Walton, J. The question is whether a road, which crosses the plaintiff’s land, was legally located, so as to justify the highway surveyor in opening it and fitting it for public travel. We think not. It was located, or rather ‘staked out,’ by Emmons Whitcomb, in 1862. He does not appear to have liad any other authority for so doing than the fact, as he says, that Mr. Norris, then land agent, wrote him in the spring of 1862; that he saw by the records in the office, that he (Whitcomb) was local agent of letter C, range 1, and washed him to go on as local agent, —‘ wished him to locate roads and get the settlers on.’ The letter was not produced at the trial, and we are inclined to believe that Mr. Whitcomb must have mistaken its import; for while the statutes, then and still in force, make it the duty of the land agent to [289] appoint some suitable person or persons in the vicinity to superintend the location of settlers, and to see that they perform their road labor, and other duties required of settlers in unincorporated townships, no statute has been cited, and after a diligent search none has been found by us, conferring upon either the land agent, or his assistants, authority to locate highways through the public lands or elsewhere. It is made the duty of the land agent to ‘ cause’ such roads to be located as the public interest and the accommodation of the future settlement require ; but the authority to ‘ locate’ them is vested in the county commissioners. See act of 1850, c. 206, §§ 2 and 4; R. S. of 1857, c. 18, § 30; R. S. of 1871, c. 18, § 32; c. 5, § 29. Nor do we think the road can be regarded as legally established by dedication or user. A dedication by the land agent, or his assistant, would be as unauthorized as a location, and would have no more effect. A road by user cannot be established in less than, twenty years. At the time of the alleged trespass this road does-not appear to have been used more than eight years. It also appears that for a portion of these eight years, if not during the whole time, gates and bars had been kept up across the road. And it was the removal of these gates and bars that constituted the principal grievance of which the plaintiff complains. It appears-in evidence that he was willing the defendants should use the- road if they would shut the gate after them. But this they refused, to do. It is clear that there has been no such use of the road as-to .establish it by prescription, or twenty yeai-s’ adverse use-. It appears that in June, 1870, the town (which had then been incorporated by the name of Easton) voted to accept the-road from Walter Dockendorff’s to William Hutchinson’s,, which is the road in dispute. Whether this was before or after- the acts of trespass complained of, is not clear from the evidence. If it- was after the trespass was committed, of course it would have no effect. And; if. it was before, we think it is clear that the vote would.not have-the-effect of making a legally established way of it. There had been' no previous location of it by the selectmen. And it is not compe [290] tent for a town to establish a way across the private land of one. of its citizens, by a simple vote of acceptance, without any previous location by the selectmen. We think it is clear that the road had not been legally established ; that the removal of the gate, and otherwise fitting the road for public travel, were illegal, and a trespass upon the plaintiff. Judgment for plaintiff. Damages to be assessed at nisi prius. Appleton, C. J.; Cutting, Kent, and Barrows, JJ., concurred.