Johnson v. Wyman

Shaw, C. J. The evidence tended strongly - to prove the existence of an ancient public highway, on the line of the old road, by prescription. It stands on the foundation of many of the early highways from town to town, of the actual laying out of which there is no record to be found. The plaintiff having erected a building thereon, the defendants have a right to remove it, as an abatement of a nuisance unless the road had ceased to be a highway in some legal mode. [189] The burden of proof was therefore upon the plaintiff to prove a discontinuance of the old highway. The judge properly left it to the jury to find, from the evidence of user, that the new piece of way was duly established, either by the court of sessions, by the town authorities, or by dedication by the private proprietors; but he did not instruct them, nor did the evidence show, in which of these modes it was established. It was competent for the jury to find that the new way was laid out in some mode, sufficient, with the lapse of time, to make it a highway. But leaving it to the jury to find whether it was done as an alteration, and then instructing them that if it was an alteration then it follows as a legal conclusion that it was a discontinuance of the old way, we think was submitting a question of fact to the jury without proper evidence. If it was in terms laid out as an alteration, we think the legal inference drawn therefrom by the judge was correct. An “ alteration ” ex vi termini means a change or substitution of one thing for another. The public authorities have power by law to lay out, discontinue or alter a highway, and therefore when they say in the record of their doings that they make an “ alteration ” in an existing road from A. at one part of it to B. in another, and over different soil, it may be well concluded that the old one is discontinued. But this arises from the manifest intent, arising from the terms they have used, in connection with the laws under which they acted. But this conclusion cannot be drawn in a case where there is no record to show what they intended to do. Whether, in the absence of all record evidence, it would be competent for a jury to find that the authority acting in such case, whatever it may have been, intended to alter and discontinue a section of a public way in opening another or not, it may not now be necessary to decide; but if it would be, it must be a distinct question of fact, to be decided upon appropriate evidence, expressly bearing upon the fact of discontinuance, such as closing up with barriers the ends of the old road, at the termini, the continuance of such barriers for a length of time, and [190] similar facts. The circumstance that the old line of road along, the arc was little used, is accounted for by the fact that the proprietors thereon and persons going to their houses had practical access, over other private land, by courtesy, to which however they had no legal right. Mere nonuser under these circumstances, and so the failure of town authorities to repair it, seem to us to have little bearing on this question of intent to discontinue. The evidence, as far as it goes, had a contrary ten dency, especially the fact that several dwelling-houses directly depended on this part of the old road, which would be accommodated by leaving the old section of the road open, though the straightening was of great convenience to the general travel. The two eases from Massachusetts Reports, which tend to show that the expression “ alteration ” in terms implies a discontinuance of the way superseded, are quite consistent with this decision, where there is no record and no such expression; and the rule manifestly applies only to cases wherein it is quite apparent that the continuance of the old section of road, by the establishment of the new, would become useless. As the evidence stands on the bill of exceptions, the court are of opinion that there was no sufficient evidence, in the absence of all records, to warrant the jury in finding that this was intended to be technically an alteration, or otherwise operate as a discontinuance of the old road. New trial granted.