Blakeslee v. Tyler

Beardsley, J. This is a qui tam action, brought upon the statute against nuisances. The statute is as follows:— “ If any person shall place, or suffer to remain, anything in a highway, or dig up the ground therein, by which the passage of travelers shall be obstructed or endangered, or the highway be incumbered, the same shall be deemed a common nuisance,” etc. Gen. Statutes, p. 253, § 1. It was admitted that the defendant obstructed the way in question by placing bars across it, but the parties were at issue upon the question whether such way was a highway within the meaning of the statute quoted. The plaintiff claimed that it was laid out as such in the year 1819, and offered in evidence a petition of Calvin Eaton and others to the selectmen of the town of Branford for a highway from the Northford road, etc., dated the 20th of September, 1817, and a survey and lay-out by the selectmen of a way between the points named in the petition, to be incumbered by three gates, one at each end and one intermediately, and described in the lay-out. as a pent road, and again as a pent highway. It is stated in the lay-out that “ said pent highway ” is laid out at the joint expense of Calvin Eaton and the town of Branford, and appended to the lay-out is a: certificate by Calvin Eaton of his acceptance of the location and conditions of the above described “pent highway.” The plaintiff also offered in evidence a vote of the town of Branford, passed April, 1819, approving this “pent highway, provided that Calvin Eaton pays one half the expense of it,” and the following extract from the town records: ‘T818,1819—Expense of pent road, Northford, half damages [395] and expense laying out—133.74. It is found that the road so laid out is the one in question. The defendant objected to the lay-out, claiming- that it was void for uncertainty respecting the eastern terminus of the road. The objection is unfounded. By the survey the eastern initial point is fixed near Peter Elwell’s house, and thence the road is to run by given courses twenty four rods to aheap of stones. It is apparent that by running the line back on the given courses, from the heap of stones, the place of beginning could be accurately fixed. The defendant claims that it does not appear that the selectmen found the road to be of common convenience and necessity. Such a finding in terms is unnecessary, as it is involved in the action of the selectmen in laying it out. Townsend v. Hoyle, 20 Conn., 7. The defendant also claims that it does not appear that damages have been paid to the owners of land taken. The court has failed to make any specific finding on this question, .but it appears that Eaton agreed to pay one half the damages, winch he has presumptively done, in view of the fact that the road has been maintained by the town, and used for nearly seventy years, and the extract from the records in evidence that the town has paid the other half. If there were no evidence on the subject, such payment should be conclusively presumed after such a lapse of time. The court finds, as already suggested, that “ since the establishment of said pent road in 1819 the same has been free to all persons desiring to use it, but has been mostly used for farm purposes, and for the carting of wood and charcoal, and occasionally by other persons,” and that “ it has been maintained by the town and repaired as a public highway from the time when it was laid out and established.” Upon these facts the defendant claims that the road was not a highway within the meaning of the statute referred to, by reason of the gates upon it, erected and maintained by authority of the town. Pent roads or pent highways are not provided for by the statutes of this state. Provision is made for two kinds of ways only—highways and private [396] ways; one .for public and the other for private use. The defendant suggests that this way is a private one, but there is nothing in its lay-out or history to characterize it as such. The selectmen are now empowered to authorize the erection of gates or bars across private ways, (Gen. Statutes, p. 234, sec. 19,) but the statute giving them this power was first passed in 1822, several years after this road was laid out. It;is clear that the selectmen attempted to lay out this road as a highway, and if they failed to do so it is because of the provision for gates upon it. Irrespectively of such lay-out, the use which has been made of the road by the public for nearly seventy years, and the action of -the town regarding it, would afford sufficient evidence that it is- a highway, unless they are controlled by the fact of the gates. It is apparent that the gates were authorized merely to save the expense of fences next to the road, upon the idea that in view of the kind and amount of travel likely to pass over it they would not be a serious impediment to it. If* they were so in fact, a question might arise whether the selectmen or town, acting as they do in behalf of the state in the laying out and maintenance of highways, would have power to authorize them. But assuming that in the present case they had such power, the character of the road as a highway was not qualified by the authorization of gates upon it, and those using it were entitled to the protection of the-statute against unauthorized obstructions upon it. Angelí on Highways, § 24. In Town of Whittingham v. Bowen, 22 Verm., 317, the question was whether a pent road authorized by the statutes of Vermont was a highway, and RedEIELD, J., says: “ Those highways which are permitted to be pent are as much public highways as any others, free to all persons who may have occasion to pass along them.”' The defendant claims that he has acquired by prescription the right to maintain the bars complained of across this highway. But the finding is conclusive against him o.n this point. . It is found that he and his ancestors from whom he has derived .title to his land adjoining the highway, have [397] maintained bars at the place in question during the summer and sometimes in winter, from 1818 or 1819 down to 1879, but that the bars were so kept there by common consent, and without any claim of right so to do, and that in 1874 the defendant applied to the selectmen for permission to keep the bars there, which was not given. Under such circumstances, if the highway had been individual property, no presumption of a grant of the right to maintain the bars would arise, (2 Greenl. Ev. § 539),.while in the case of a public highway it is very questionable whether such a right could be obtained by adverse user in any circumstances. We incline to the opinion that it could not. 2 Dillon on M'unicp. Corp., §§ 530 to 533. “A nuisance however long continued never ceases to be abatable by reason of its antiquity.” Angelí on Highways, § 274. There is no error in the judgment appealed from. In this opinion the other judges concurred.