Potter v. Town of Castleton

The opinion of the court was delivered by Powers, J. It is now well-settled law in this State that no action can be maintained against a town for injuries received outside the travelled track of a highway if the traveller goes upon the margin by his own fault. Rice v Montpelier, 19 Vt. 470, is a leading and representative case upon the subject. It is also well settled that if the margin has been worked into road or been made road, designed for travel, by long user, the traveller who receives injury thereon without his own fault may recover his damages. Whitney v. Essex, 42 Vt. 520, and Ozier v. Hinesburgh, 44 Vt. 220, are representative cases in support of this rule. We are not disposed to enlarge or restrict the doctrine as expressed in these cases. The question presented here is, to which class do the facts stated assign this case. The special finding of the jury has solved the doubt in the answers to special questions, two and three, in which it is found that the accident happened in that part of the highway used by the public for travel. The track to the drug store had ceased to be margin, and had become road by user since 1818, and should be kept in repair as faithfully as the main track through the village. The plaintiff in using it as a way to the drug store was not, like plaintiff in Rice v. Montpelier, out of his place, but was using a way designed for use. The fact that the town had never worked this path is not decisive upon the question whether it was a highway. If the town had worked it, its character could not be in dispute. But a highway may be as effectively established by other means. If private individuals make a wrought way and the public are permitted to use it for public travel for a long time — or if the public travel [441] itself works a way without other agency, and the way. is suffered by the town authorities to be used, as this way was used, for many years, the way becomes one which the town is bound to keep in repair. If Dr. Northrop had kept that portion of the main track through the village opposite his place of business in repair for years as he did this side track, it would not lessen the liability of the town if the public were suffered to use it. The scales were constructed by Dr. Northrop for his own private purposes — the platform extended across the side track leading to the drug store, and thus became a section of the road over which the travel going that way had to pass. Under such circumstances the liability of the town is the same as it would be had Dr. Northrop placed the scales by the side of the main track through the village, and extended the platform over such track, and the public were permitted as in this case to drive over the platform. It was argued that the town had provided a way for all through travel, and that this was the measure of its duty. We understand that the duty cast upon towns is to provide a way sufficient for the travel that has occasion to use it, whether it be through travel, or travel that diverges from the through line. There is special occasion in large villages for more ways and better constructed ones, leading to public places, than in more sparsely settled localities, and if the authorities construct them or adopt them when otherwise constructed, they owe the travelling public the duty of keeping them in repair. Judgment affirmed.