Page v. Town of Weathersfield

The opinion of the court was delivered by Williams, Ch. J. The case before us is a very clear one. If the town is liable in this case, a highway may be established and the town liable to repair the same and subject to an indictment as well as a suit to be brought by individuals, against the consent, and contrary to the will, both of the town and the owners of the land, where the highway is attempted to be established. Towns are made liable by force of the statute for injuries happening to individuals, and in consequence of the insufficiency or want of repairs of their public roads and bridges. A public road is one laid out by proper authority — as the selectmen of the town, or a committee appointed by the supreme or county court, the evidence of which is the survey, &c., or the record. When this evidence is wanting, a public highway may be proved by other acts showing that the towns have recognized it as such, by doing labor thereon, or authorizing the surveyors to collect and expend the highway tax thereon. But I know of no way in which an individual can lay out a highway for his own benefit and compel the town to adopt it as such. The selectmen may discontinue certain public highways laid out by them, but they cannot discontinue a way adopted by individuals for their own benefit. A discontinuance of such a private way, entered on the records of the town, would be wholly inoperative, as the individual could still keep it open. It has been argued, in this case, that the selectmen have power to lay out pent roads, and authorize gates, &c., to be [430] erected thereon. To give any force to this argument, it should appear that they had power to compel the erection of Sates and barS‘ About the facts in this case, it is said there was no con- or contradiction. The owners of the mill opened a passage from the highway to their mill, and have used it for the benefit of themselves and their customers, have repaired it from time to time, and the town have done no highway work thereon. The selectmen could neither discontinue it as a passage, nor shut it up, nor control it in any way. It commenced at the highway and terminated at the mill. Whenever the owners of the mill have no further use for it, they may fence it up without the consent of the selectmen or consulting them, and while they want to use it for the same purposes as heretofore, the select men cannot interfere with their right so to do. No one of the numerous authorities read, afford any countenance to the idea that this passage was a public highway, which the town were bound to repair, or for the insufficiency of which they were liable to the suit of an individual injured. The judgment of the county court is therefore affirmed.