The opinion of the Court was drawn up by
Davis, J.This is an action to recover damages occa*186sioned by a defect in one of the streets in the city of Biddeford. In order to prove the location of the street, the plaintiff relied upon evidence of repairs made by the street commissioner upon a continuation of the street. That portion of the street where the repairs were made had been legally located before the accident occurred; but the repairs proved were made before it was located. There was no proof of the location of that part of the street where the plaintiff-was injured, except the evidence of repairs upon the other portion of the street. It was not admitted that any repairs were made there; the counsel for the city contending that the street commissioner merely deposited there earth and rock excavated in repairing another street, for the purpose of getting rid of them, not intending thereby to repair the street, or private way, upon which they were thus thrown.
The jury were instructed that, in order to have the effect of estopping the city from denying the location of the street, " what was done must have been intended for repairs; that if, in dumping the stones, which were blasted, down over the hill, the object was merely to get rid of them, such dumping would not constitute repairs, within the meaning of the law.”
This instruction was correct. If the officers of a city or town, in constructing or repairing a public way, dispose of the waste rocks or earth for the benefit of some individual, in such a manner as to improve a private way belonging to him, the repairs so made upon the private way are made for the owner of it, and not for such city or town. In doing such work, or in doing the work in the particular manner, the workmen are, quoad hoc, the agents of the individual, and not the agents of the city or town. The authority conferred by the city or town contemplates no such purpose or result.
The counsel for the plaintiff requested the Court to instruct the jury "that, if the way from Pool street to the ■bottom of the hill was one continuous v:ay, forming a com*187munication between two public ways of the city, and the city was under no obligation to keep any part of it in repair, but did make repairs upon any portion of such way within six years before the injury was received, it would bo liable for the injury.”
The jury were instructed "that, if a private way had been opened from Pool street to the bottom of the hill, it would be competent for the city to establish the whole, or a part of it, as a public way; that, if only a part of it had been thus established, repairs upon such part would not render the city liable for an injury upon the other part, to which such repairs were not intended to apply.”
Taking the instruction given, with that which was requested, as it was probably intended, it amounts simply to this, — that repairs upon a way in public use are not conclusive evidence of its location to the entire extent to which it may he " continuous.”
By the R. S., c. 18, § 62, it is enacted that, " when it appears that the party defendant has, within six years before the injury, made repairs on the way or bridge, it shall not be competent for him to deny the location thereof.”
The statute assumes the existence of a way de facto, in actual use at the place of the injury. The repairs must be shown to have been made upon such way. How far from the place of the injury may the repairs be, and still be held to be " on the way ?” The instruction requested affirms that continuity is the only test; that so far as the way is "continuous,” it is the same way; and the making of repairs is conclusive evidence of location. The instructions given denied this, and were correct. 0
A "continuous” way through the entire length of a town may have been opened in successive parts, at different times. A part of- it may have been located as a town, way; another part by the county commissioners ; and another part may be a mere continuation made by the owner of the adjacent land, as a private way. Can it be said to be the fair meaning of the statute that repairs ‘ made upon one extreme of *188such a way will estop the town from denying the location of the other extreme, at a distance of miles? If not, then the fact that a way is " continuous” is not the only fact to be taken into consideration, in deciding whether the injury and the repairs are both upon the same way. No definite rule can be given for determining this question. It is one of fact, for the jury. The statute must be applied reasonably, according to the circumstances of each case. The continuity, or apparent oneness of the way, from the place of the injury to the place of repairs, is one element to be considered. The length of time during which it has been so used is another. The distance between the two points is another, , and generally a more important one. But the importance of this will depend upon the locality, whether in a city, or in the country; and whether there are intermediate crossing or intersecting roads or streets. For it is well known that in cities the owners of lots often open private streets, in order to make such lots saleable, long before they are located. And, as they are generally located in short sections, repairs at one point would, of itself, be but slight evidence of location at another.
The instruction requested mistakes the point to which the estoppel provided by the statute is intended to apply. A town cannot " deny the location” of the way where the repairs are made. It may deny that the way where the injury occurred is the same way. And, if it is proved that the former was legally located, while the latter was not, that will show that the two places are not upon the same way. In that case the repairs at one point are no evidence of Ideation at the other.
Practically there is seldom any difficulty-in applying the statute. Repairs within six years can be easily proved, at the place of the injury, or on either side of it.- And in cases, like the one at bar, where there is any doubt, the statute operates substantially to change the burden of proof, and places the town in a position where it must show, in order to repel the presumption, not only that there was no *189legal location at the place where the injury occurred, but that the way was legally located at the place where the repairs were made. If no legal location is proved at either point, 'and the way appears to be one and the same at both, the town being estopped from denying the location at one, it may be presumed at the other if not too remote.
The counsel for the plaintiff requested the Court to instruct the jury, "that acts done by public officers, in their official capacity, are in law presumed to be rightly done; and the burden of proving the contrary rests upon the party alleging it.”
This request was not pertinent. The question was not, whether repairs made by the street commissioner " in his official capacity” were " rightly done;” but whether the repairs Avere in fact made in his official capacity. The request assumes this, and raises another question. ’ His right to make them might be contested by the owner of the land, in an action of trespass against him; or, by the city, in an action by him to recover pay for his services. He had no such right, unless the Avay had been legally located. The plaintiff did not claim that he otherwise had any such right. The design Avas not to prove the right, which depended on the location; — but to prove the location, by the official act. And the only question, therefore, Avas, whether^ he made them "in his official capacity,” as the agent of the city. Or, did he make them in his private capacity, for himself, or for some other .person ?
The ambiguity of the request seems to have misled the Court. The jury were instructed that, "if the plaintiff Avould bring his case Avithin the provisions of the statute, the burden of proof Avas on him to show, not only that the repairs Avere made, but that they Avere made either by express authority of the city, or by its duly authorized agents, acting Avithin the scope of their authority; and, that the mere fact, that repairs had been made by a street commissioner, upon a way which the city was under no legal obligation at the time to keep in repair, would not be sufficient.”
*190The first branch of this instruction was obviously correct. But the second branch assumes the very point in controversy, — that the city was under no legal obligation at the time to keep the way in repair;” — when the repairs were proved for the sole purpose of establishing such obligation. Literally it was correct. If it had. been conceded that the city was under no legal obligation to keep the way in repair, it would not have been erroneous. But then, there would have been an end of the plaintiff’s case. The obligation to repair was the sole ground of any liability for the defect. This being the very point in issue, the instructions should not have assumed its determination in favor of the defendants.
Repairs made upon streets in actual public use, by a street commissioner of a city, may well be presumed, in the absence of any evidence to the contrary, to have been made by the city. His acts, upon matters within the scope of the trust committed to him, are, prima facie, the acts of the city. Whether they are within the general authority conferred upon him, is a question for the jury. Thayer v. Boston, 19 Pick., 511. If he makes repairs upon a private way, not acting in behalf of the city, but for himself, or for another, the city is not liable for his acts, nor is it estopped from denying the location of such "way.
As the instructions given, in 'connection with those requested, may have misled the jury on this point, a new trial must be granted.
Appleton, C. J., Cutting, Kent, Walton, Dickerson and Daneortii, JJ., concurred.