State v. Alstead

Gilchrist, J. There is no doubt that the record of the laying out of the road described in the indictment is defective in many particulars, and perhaps in all that are specified in the case ; and if it were a recent transaction these defects would be fatal to it, as evidence of the legal existence of the road. But in transactions so ancient that the means of proving the exact state of the facts may fairly be presumed to have been lost, through the death of those who participated in them, and whose duties required them to know the whole truth; or, through the loss of the memory of them, on the part of such persons, if living, so that the [64] ordinary remedy of the defect, by an amendment of the record, has become impracticable, a presumption is established in favo.r of the correctness of the proceedings, so imperfectly recorded; and the record, defective as it is, may be submitted to the jury, with instructions that enaable them to find from it all the particular facts which it does not specifically attest, that are requisite for the validity of the principal one, which is sought to be established in evidence. Bishop v. Cone, 3 N. H. Rep. 515; Cavis v. Robertson, 9 N. H. Rep. 527. According to the doctrine of those cases, therefore, the record, which was offered in evidence, under a date so distant as 1807, thirty-nine years before the trial, might well have been submitted as evidence that the laying out of the road, which was returned and recorded with due legal formality, was authorized by the prior application, adjudged in the case of Pritchard v. Atkinson, 3 N. H. Rep. 337, to be necessary to enable the selectmen to act at all; that the land owners received the notice, without which it is not usual, and it would not have been legal for the selectmen to encumber their land with the public servitude of a highway; that a suitable and satisfactory compensation in damages was awarded to them, and that the road was for the public use, since the record contains no intimation to the contrary, if, indeed, it is material whether it were for the one or the other. Metcalf v. Bingham, 3 N. H. Rep. 459. If there had been competent evidence that highway surveyors, in the execution of the warrants committed to them, had been accustomed, soon after the supposed laying out of the road, to work upon it, the effect of such doings, in the way of confirming the presumption allowed in favor of the validity of that act, would have come fairly before the court. But the evidence wholly fails to prove such facts. It was not proved that the road was within the district of either of the surveyors whose doings were [65] offered in evidence, and the warrants themselves — the proper evidence of what they did — were not produced or accounted for. The question is therefore open, whether any presumption whatever exists that highway surveyors, in the exercise of their offices, confine themselves to roads legally established, and whether a question as to the validity of an ancient act, imperfectly recorded, may derive any reliable light from the fact that such functionaries as highway surveyors regard it as valid. What evidence, if any, would suffice to show an abandonment by the public, of their rights in a road, laid out and constructed for use, or their right to require a road, legally laid out, to be constructed and rendered fit for use, it is not necessary to determine. Towns have long possessed the power, by vote, with the condition of obtaining, in some instances, the permission of the court for the purpose, to relieve the land of proprietors from such a burden, and no other way is pointed out by which such relief can be obtained. Whether, after a sufficient period, during which the public easement has not been enjoyed, but, on the contrary, the owner has excluded travelers, by effective barriers, from passing over his soil, and, by open and notorious acts, claimed a total exemption from the servitude, a jury might be authorized to presume that the road had been regularly discontinued, this case does not render it necessary to determine, since it does not furnish the evidence of such a state of facts. The evidence here is, that the road has, within twenty years, been repeatedly traveled with vehicles of different descriptions, and has presented the appearance of having been worked. The road appears, by the testimony of the surveyors, to have been worked, at sundry times, since the supposed laying out, and Crane’s testimony is to the same effect. For such a question, it seems immaterial whether the work was done by individuals voluntarily contributing to [66] the expense, or by surveyors, in the course of their public ministrations ;' since the act of repairing the road seems to be as effectual to rebut the evi'dence of a non-user, as the act of traveling upon it would be; and the force of the evidence, in this respect, consists in the cumulated facts of a nature to indicate that people persisted in treating it as they treat a way which has been devoted to their use. This is not a case in which it is necessary to prove a dedication of the road to the public, by the proprietors over whose land its course lies. It is a question, whether there has been an abandonment, by the public, of the rights, once acquired by the laying out of the road, by proceedings supposed to have been valid in law for that effect. The acts of those proprietors, therefore, or the acts of others against such public right, and having an aspect of asserting an exemption from it, such as encumbering the road during certain seasons of the year, and obstructing, by means of bars, gates, and fences, the free use of it by' the public, must not be regarded, since they did not, for a great length of time, amount to an effectual exclusion of the public, as being any thing more than as aggressions. They were submitted to in a degree, but this was because they were attended with no other effect than that of rendering the use of the road difficult, and not of wholly suspending it. The case is, therefore, one for the jury to inquire.upon the evidence furnished by the record, whether the road was legally established, and if so, to settle such other questions of fact as, in that event, may be pertinent. According to the agreement, the case must stand for trial. [67] SULLIVAN. JULY TERM, A. D. 1846.