Prouty v. Bell

The opinion of the court was delivered by Ross, J. The exception now insisted on is to that part of the charge in which the court, in substance, instructed the jury that the defendant would have the right to use that part of the road in question as a pent road, as he had been accustomed to do, if they found it had been substituted for the old highway, and used in the manner indicated by the testimony of Arnold Prouty, even though it had been so used less than fifteen years,- for instance twelve years. The acts of the plaintiff’s grantor, which the jury, under the instruction of the court, must have found were performed in fencing up and plowing a portion of the regularly laid out highway, and in making the way in question, for the portion thus taken by him, were as unequivocal acts of a dedication of the substituted portion for the portion of the highway taken, as the owner of the soil could well perform. They indicated a clear purpose to dedicate the way made by him for that portion of the highway taken, so long, at least, as he continued to use and occupy the portion of the highway taken, and failed to restore it to the public in a condition suitable to be traveled. Whether it was such a dedication that he could not recover it from the use of the public for a highway, if the town authorities or public had been dissatisfied with the exchange, and compelled the opening of the regularly laid out highway, we have no occasion to inquire or decide. We are satisfied that it was such a giving of the substituted portion to the use of the public as amounted to a license or permission to the public to use it, in place of that portion of the highway taken. The plaintiff, by continuing to use and occupy the old highway, and by allowing the public to use the substituted way, adopted the [76] acts of Ms grantor, and continued the license and permission to the public to use the substituted way, and could not maintain an action against any one for using it until he revoked the license thus given by his grantor and himself. There is nothing in the case to indicate that he has ever done this. We do not decide whether he could -revoke the permission thus given to the public to use the substituted way without restoring the old way. Upon general principles, it would seem he should be held to the exchange of ways thus voluntarily made by his grantor and adopted by him, so long as the town authorities remain satisfied therewith, or, at least, until he places the public in the use of the old highway, in as good a condition to be used as a highway as it was when he made the exchange. In justice, the plaintiff ought not to be allowed to reap an advantage from the wrongs of his grantor, which have been adopted and continued by himself. The plaintiff claimed the right to recover damages to the time of the service of his writ. In both counts of the declaration ho alleges the injuries to have been committed between a day named and the date of the writ. Ho has thus limited himself to a recovery for injuries committed previously to the date of his writ. What might have been his rights, in this respeet, under a different declaration, is not involved in the solution of this case. The judgment of the county court is affirmed.