Greeley v. Quimby

Eastman, J. A highway may he established by long use. And, ordinarily, a use of twenty years, without interruption, is competent evidence from which a jury may find a road legally laid out. State v. Campton, 2 N. H. Rep. 513 ; Prichard v. Atkinson, 3 N. H. Rep. 335 ; State v. New Boston, 11 N. H. Rep. 407 ; Hull v. Richmond, 1 Wood. & Minot’s Rep. 337; State v. Sartor, 2 Strobh. 60; Larned v. Larned, 11 Met. Rep. 421; Commonwealth v. Miltenberger, 7 Watts’ Rep. 450; Williams v. Cummington, 18 Pick. 312; State v. Hunter, 5 Iredell, 369; Todd v. Rowe, 2 Greenl. Rep. 55; Hicks v. Fish, 4 Mason, 310. Rut in this case, the evidence excepted to, did not go to establish a road by long use or dedication, but to show by parol a road duly laid out by the selectmen of the town with certain reservations to the plaintiff. This evidence, taken in connection with the instructions of the Court bearing upon it, may very probably have been the ground upon which the jury based their verdict. Under the law, as it stood at the time the road through the plaintiff’s land was laid out, as testified to by Pettengill, it was necessary that the doings of the selectmen should be reduced to writing and lodged with the town clerk, before the road could be considered as duly laid. Hayes v. Shackford, 3 N. H. Rep. 10; Commonwealth v. Merrick, 2 Mass. Rep. 524. At the present time, the statute makes it the duty of the selectmen to cause their return to be recorded by the town clerk. Rev. Stat. chap. 49, § 12. As the law required that the return of the selectmen, laying out the road, should be in writing, no other proof can be substituted for it, so long as it is in existence and within the power of the party to produce; for parol evidence cannot be substituted for what the law requires to be in writing. The return being produced, might be found to be irregular and void, and the witness might be entirely mistaken as to its purport. 1 Greenl. Ev. § 86. Moreover, the testimony of Pettengill itself, dis [339] closes the existence of a higher grade of evidence. It carries upon its face, proof that the laying out was in writing, and therefore comes within the general principle of secondary evidence. Before the testimony excepted to, in regard to the laying out of the road, could be properly received, it should have been shown that the records and files of the clerk’s office had been searched, and that no return of the laying out could be found. We think the verdict must be set aside, and a New trial granted.