Skinner v. Town of Weathersfield

Watson, J. The only question presented is as to the ■sufficiency of the notice. The defendant contends that this is defective in that it does not state that the bridge mentioned •■therein formed part of any public highway which the defendant town was bound by law to keep in repair. The notice is ■directed to. the selectmen of the town of Weathersfield, and .states that on the day named the plaintiff was “travelling on .and over a highway and bridge in said town, * * * said bridge being upon said highway between the dwelling house and the grist mill of Leonard Bailey, and about one hundred feet southeasterly of said dwelling house and 'thirty-seven feet southwesterly of tire shed attached to said Bailey’s grist mill.” It sufficiently appears therefrom that the bridge formed a •part of the highway mentioned, and the location of the bridge is very specifically given. A compliance with the statute requires nothing more in this respect to malee the notice sufficient. White v. Stowe, 54 Vt. 510, and Farnsworth v. Mount Holly, 63 Vt. 293, 22 Atl. 459, are relied upon by the defendant as authorities supporting its contention. But a careful .examination of these cases shows that they are not in conflict with the above holding. In the former case the notice did not •show the highway where the accident took place to be within :the defendant town. The court said the notice “must be so ■certain in description of time and place as to impose a duty •upon the selectmen to investigate the claim. If the notice • does not state that the injury happened on a highway that the town was bound ho keep in repair, the selectmen would be justified in disregarding it.” Construing these two clauses together, manifestly the Court meant by what it said in the latter that the notice must be such as will give the selectmen to understand that the accident was on a highway which the town was required by law to keep in repair. And this it does when 413 it fairly shows to them that the highway about which complaint is made is in their town. Among others, the same defect was-found in the notice in Farnsworth v. Mount Holly, and in disposing of the case the Court used substantially the same expression regarding the highway being one which the town was bound to keep in repair as is used in the second clause-above quoted from White v. Stowe, but it is used in.the same-sense and has no other significance. It is urged, however, that there is a distinction between a “highway” and a “public highway,” consequently that to use only the term “highway” in a notice does not imply a road which the town is obliged to-keep in repair, and we are referred to Page v. Weathersfield, 13 Vt. 424, as making such distinction. In that case the accident happened on a private way leading to a certain grist mill,, and the terms “highway” and “public highway” are used synonymously signifying a way laid out or adopted by the toWnr as distinguished from a private way opened by individuals for the benefit of themselves and their customers, and which the town could not discontinue, shut up, or control in any way. The case does not have the force claimed for it in argument. In State v. Wilkinson, 2 Vt. 480, the respondent was indicted for unlawfully erecting a building “in, and upon, a certain public square, and in the' common highway there called the public square,” in the village of St. Albans. The case was heard in this Court on exceptions taken during the trial and to the overruling of a motion in arrest of judgment. It appears that whether a way created as the one there in question was, imposed upon the town the charge of keeping it in repair, was a point much argued. It was held that if the locus in quo was a highway, it was a franchise belonging to all the people, and an .indictment would lie for any obstruction of it. The Court said: “A highway, according to the common law, is a 414 place in which all the people have a right to pass. A common street and public highway are the same, and any way, which is common to all the people, may be called a highway.” The exceptions were overruled. And in French v. Barre, 58 Vt. 567, 5 Atl. 568, it is said that all highways, whether open roads, cross-roads, lanes, or pent roads, are public highways. Judgment affirmed.