Tower v. Town of Rutland

The opinion of the court was delivered by Royce, Cla. J. This was an action to recover for an alleged injury upon the highway. It was incumbent upon the plaintiff to prove that the highway upon which the accident happened was one-that the town was legally bound to keep in repair. To prove that, the' plaintiff relied solely upon proof pf the use of the road for public travel and ’ the fact that it was the direct thoroughfare from Main street'to Merchants’ Row; that there were sidewalks' upon both "sides "'of it, and a lamp post had been [31] erected upon one corner. The case shows that the evidence of those facts was admitted without objection; and the plaintiff may well have thought from the manner in which the trial was conducted that no question would be made but what the highway was one that the town was bound to beep in repair. But the exceptions show that the defendant did not admit the fact, and so there was no waiver of its right to claim that the fact should be legally proved; and- called the attention of the court to the omission of proof that it was a public highway, and requested that a verdict might be directed upon that ground. In Blodgett v. Royalton, 14 Vt. 288, the question was made as to whether the highway upon which the plaintiff was travelling at the time he was injured was one that the town was bound to keep in repair; an.I the court charged the jury that after it in fact had been opened, and travelled as a public highway with the knowledge and consent of the selectmen, they were at liberty to find for the plaintiff: The Supreme Court held that the consent merely of the selectmen that any. person should travel on any path whether a public or private road was no act recognizing such road as a highway for which the town was responsible ; and that their knowledge that a traveller supposed it to be a public highway was of no importance, unless 'by some act of theirs it could .be. inferred that they had opened the road or adopted it as a highway to be repaired by' the town. In the opinion, Judge Williams specifies acts of the town or selectmen which would constitute the adoption of a highway by' a town — such as the shutting up an old road, leaving no other 'avenue for travel except on a road which they had made, and putting the same into the rate bills of the highway'surveyor. The same learned judge says, in.Page v. Weathersfield, 13 Vt. 424, that a public highway may be proved, by showing that the town had recognized it as such by doing labor thereon, or authorizing the highway surveyors to expend money thereon. In Folsom, v. Underhill, 36 Vt. 580, it was held that neither the fact of a dedication of land to the public as a highway, nor the use of the land by the public as a road for public travel, would be sufficient to [32] impose upon the town a duty to keep the road in repair as a highway. The use of a road for public travel, however extensive that use may be, is not sufficient to constitute such road a highway by adoption so as to impose the duty upon the town to keep it in repair. There must be in addition evidence of some act of the town recognizing it as a highway. No. such act of the town is shown; and the evidence did not prove that the highway in question was one that the town was bound to keep in repair. It appeared that tire dump-cart, which 'it was' claimed constituted the insufficiency in the highway, that occasioned the'injury to the plaintiff, was brought to the shop of one Terrill to be repaired, at about half past ten a. m., and the accident happened at about 2 p.-m., of the same day. The plaintiff, as descriptive of the place and as bearing upon what the town ought to have known about the cart’s being there was permitted against the exceptions of the defendent tó show that prior to the accident Terrill’s customers had been accustomed, when bringing their carriages to his shop for repairs, to leave them on the margin' of the' highway and sometimes outside the sidewalk. That testimony eoirld be of no' possible aid in the ascertaining of tlie place where the cart stood the day of the accident, and was not admissible for that purpose ; neither did such use as it was shown the highway had been previously put to, tend to show that the selectmen knew or ought to have known that the cart was 'there upon the day of the accident; so the evidence was not admissible for that purpose. The admission that was made by the selectman, Hayward; should have been excluded; the only use that could be made of th'e admission was to charge the town witli liability. The admissions of selectmen unconnected with any official act, and not made as explanatory of, or as qualifying, an official act,' cannot be used for any such purpose. Folsom v. Underhill, supra. The judgment is i'éversed and, the cause remanded.