The opinion of the Court, Shepley, C. J., Howard, Rice and Appleton, J. J., was drawn up by
Shepley, C. J.The defendant was indicted for obstructing a highway in the town of Livermore. Testimony was introduced to prove, that it had been used as such for more than twenty years.
In defence, a record of certain proceedings of that town with proof of its acts, was introduced, tending to show, that the way was laid out as a town way, and that it had been discontinued by a vote of the town, before it had been obstructed.
The presiding Judge, probably considering that this Court had decided, that a town way could be established only by a record exhibiting a compliance with the provisions of the statute, instructed the jury, that the evidence introduced by the defendant constituted no defence.
The Supreme Court of Massachusetts having expressed an opinion, in the case of Commonwealth v. Low, 3 Pick. 408, *246“ that a town way can be established only in the mode prescribed by statute of 1786, chap. 67this Court, in the case of the State v. Sturdivant, 18 Maine, 66, yielded its assent to that decision not without some reluctance.
In the case of Commonwealth v. Belding, 13 Metc. 10, that Court reexamined the question, and came to the conclusion, that “ with the proper evidence it would seem reasonable, that a town way might be shown, as well as a public highway, without in all cases producing a record of its establishment as a town way.” The instructions were held to be correct, which had authorized the jury to infer from testimony introduced, that a way was laid out as a town road.
This was followed by the case of Avery v. Stuart, 1 Cush. 496, in which the opinion states, “ we cannot doubt, that this evidence was admissible, although it might appear, that the laying out of the way was not strictly regular and definite as to its location.” And the Court held, that it had been properly left to the jury to decide on the whole evidence, whether the way was a public way or a town way.
The later decisions are more satisfactory, being more in accordance with established principles and with the law as applied in analogous cases.
The record of the proceedings of the town and the other testimony tending to prove, that the way was laid out as a town way, appear to have been properly received.
The effect of that testimony should have been submitted to the jury under proper instructions, that they might consider, whether it was sufficient to rebut the presumption of law arising from the proof of its long continued use by all the citizens having occasion to use it, that it was a highway.
If they had so found, the defendant would have been entitled to an acquittal, for he was not indicted for obstructing a town way. Exceptions sustained, verdict set
aside and new trial granted.