Commonwealth v. Low

Morton J. delivered the opinion of the Court. The only question presented for our consideration, in this case, is the legal existence of the way described in the indictment. No record of the laying out of the way by the selectmen of Chelsea, in the manner prescribed by St. 1786, c. 67, is produced. But it is contended, that although no such record [412] can be found, yet that the lawful este olishment of the way may be presumed from the long use of it, as proved upon the trial Ways of various kinds may be proved, not only by prescription, but by a continued and uninterrupted use of them for a period much within the memory of man. And it cannot be doubted, that public highways may be shown by evidence of a user, as well as by the record of their laying out. But whether the same principles apply to town ways, is a question about which, on several occasions, intimations have fallen from the Court, but which has never been directly decided. In the case of Commonwealth v. Newbury, 2 Pick. 57, the Chief Justice, in giving the opinion of the Court,' observes, that “ it is difficult to conceive how a town way, merely as such, can be established in any other manner than by laying out for that particular use by the selectmen of the town, by virtue of the statute respecting highways. It seems to be intended by the legislature, that no such ways shall acquire the character of private town ways, except in the form therein provided, and especially by the express allowance of the inhabitants in regular meeting assembled.” This statute gives to town ways, laid out in pursuance of it, in some respects, the character of public highways. It imposes upon the town the duty of keeping them in repair, and renders it liable to indictment for a neglect of this duty. It declares obstructions upon town ways public nuisances, and renders those, who create them, liable to criminal prosecutions. And they are open to all the citizens of the commonwealth, as well as la the inhabitants of the particular town by which they are laid out. There is no doubt that the inhabitants of a town, in their corporate capacity, are capable of taking an easement, or other incorporeal hereditament, and that they may become seised of a right of way by grant, prescription or reservation. A grant also may be presumed from continued occupation, as well in favor of a corporation as of an individual. If the inhabitants of Chelsea have exclusively and uninterruptedly used and enjoyed the way described in the indictment, for more than twenty years, it may warrant the pre [413] sumption of a grant. Whether the evidence in this case proves such a use, may, perhaps, be well doubted; but from the view which we take of the law it is unnecessary to decide this question. If a grant of the way be presumed, it will not support the indictment. It will operate in favor of the town only, and will give no right of passage to any but the inhabitants. It will be technically a private way, and any person other than an inhabitant passing upon it will be a trespasser. If obstructed, no indictment will lie for the obstruction, nor will the town be liable to punishment for neglecting to repair it. We do not perceive how the record of the establishment of such a town way as is contemplated by the statute, can be presumed from a user of any length of time. ' If it be used exclusively by the inhabitants of the town, the presumption will be of a grant of a way to the town, which will be strictly a private way, and will not support this indictment. If it be used by the inhabitants of the town in common with other citizens of the commonwealth, it will raise a presumption that the way is a public highway. Whether in this commonwealth a public highway may be acquired by dedicalion or not,1 it is very manifest that a town way cannot be thus acquired. The use of it by the inhabitants of a town, if exclusive, might prove a grant to the town, but would negative a dedication to the public ; if not exclusive, it would prove it a common highway, and not a town way. We are therefore of opinion, that a town way can be established only in the mode prescribed by St. 1786, c. 67, [see Revised Stat. c. 24, § 66, et seq.] and that there is no evidence that the way in question was so established.2 Verdict set aside and a nolle prosequi entered. Footnotes [1] See Hinckley v. Hastings, 2 Pick. (2d ed.) 164, note. [2] See Revised Stat. c. 25, §26. See also Todd v. Rome, 2 Greenl. 55; 5 Rowell v. Montville, 4 Greenl. 270; Estes v. Troy, 5 Greenl. 368; Jones v. Andover, 9 Pick. 146.