Commonwealth v. Inhabitants of Holliston

Chapman, C. J. The map was used, not as legal evidence in the case, but to enable the witness, into whose hand it was put, to point out to the jury the location of the alleged way, so far as it was correctly represented thereon. For this purpose it was within the discretion of the judge to allow it to be used, Hollenbeck v. Rowley, 8 Allen, 473, 475. Since the St. of 1846, c. 203, highways cannot be established by dedication. Commonwealth v. Taunton, 16 Gray, 228. Before that, time they could be thus established, as well as by prescriptive use. In Jennings v. Tisbury, 5 Gray, 73, the court say that “ a large proportion of the public ways, whether Jiey be considered public highways or town ways, stand upon no other [234] title but prescription,” and that the time of prescription is now to be considered as fixed at twenty years. See also Commonwealth v. Old Colony & Fall River Railroad Co. 14 Gray, 93, 94. It had formerly been thirty years. By our statutes, the acts of a highway surveyor in repairing a highway are made evidence against the town to prove that it is a highway. Gen. Sts. e. 44, § 26. Evidence that prior to 1846 Thomas Rockwood was acting surveyor of highways of the town, and publicly exercised the duties of the office, and that under his order and direction persons worked upon the road in repairing the same, was competent to prove that he held that office, without proving his appointment by the town records. 1 Greenl. Ev. (12th ed.) § 92, and notes. Such repairs were evidence fending to show the existence of the way at that time either by dedication or prescription. Evidence of similar repairs after 1846 would tend, in connection with the other evidence, to show the continued existence, and recognition of the way, in like manner as evidence that it had been closed up and no longer worked would tend to disprove its existence as a public way. The whole evidence is not reported,' and the only question presented respecting all this evidence is whether it was admissible. We are of opinion that it was. JExceptions overruled.