Hicks v. Ward

Appleton, C. J. This is an action of trespass guare clausum fregit. The title of the plaintiff is not denied, and the acts complained of are admitted. The defendant justifies as street commissioner of the city of Augusta in repairing a town way under the direction of the city government. The only question in dispute relates to the legality of the way where the trespass was committed. In 1839 the town of Augusta located a way over the premises in controversy, which was discontinued at a town meeting held March 1, 1841. In 1859 there was a new location of the road, which, by vote of the common council and aldermen, was discontinued August 28, 1860. By the charter of the city of Augusta, § 7, “ The city council [441] shall have exclusive authority and power to lay out and establish any new street, public way, or town way, that the selectmen and town of Augusta could lay out and establish, and to widen, or otherwise alter or discontinue, any street or public way in said city, and to estimate the damages any individual may sustain by such laying, widening, alteration or discontinuance, and shall in all other respects be governed by and subject to the same rules and restrictions as are provided in the laws of this state regulating the laying out and repairing streets and public highways,” and provision is made for an appeal by the party aggrieved. It is objected that the discontinuance is void, because there was no determination as to damages, and nothing done on that subject ; but this was held not to be necessary in State v. Brewer, 45 Maine, 607. Nor was any previous action necessary on the part of the city. Batham v. Wilton, 23 Maine, 125. Subsequently the question as to the existence of the road in question came before the city government, and it was voted in both branches “ that, in 1859, said road was duly laid out by the city government; that, in 1860, an order passed both branches of the city council discontinuing said road ; since that time no road has been laid out at said place.” No road is shown by a continued user of twenty years. By the discontinuance in 1860 all the rights of the public were at an end, and those of the plaintiff at once revived. Since 1860 there has not been sufficient time to establish a road by user. The damages were not large. Judgment for plaintiff for $25. Walton, Daneortk, Virgin and Peters, JJ., concurred. Libbey, J., having once been of counsel, did not sit.