delivered the opinion of the Court. The statutes providing for the opening of new public highways, and town ways, have not designated what acceptance of the way, when laid out and made, either by the county commis*49s oners, the town officers or otherwise, or what other act, shall constitute the opening of a highway to public use, so as to subject the town to an indictment for not keeping it in repair, and to a civil action for damages, to any one who shall sustain loss by the want of necessary repair. It therefore remains a question for judicial construction. It seems very clear, that the mere adjudication of the commissioners, duly recorded, cannot of itself constitute a highway for use. Nor after a certain amount of labor is done upon it, by cutting trees, blasting rocks, and preparing it to become a travelled road, can it be so considered.
It seems equally clear, that after a highway has been regularly laid out, by competent authority, a time fixed for the town to complete it, and it is subsequently actually opened to the use of the public, those who have the right to use it, may presume that what was to be done by way of acceptance, has been done, and that it has become in fact a public highway, and the responsibility of the town thenceforth attaches. Were it otherwise, a town by refusing in form to accept a highway and to declare it finished and opened for public use, might for a long time, if not forever, avoid the responsibility, which the law means to cast upon towns, contrary to the plain intent of the statute. And should a town protest against the opening of a highway for use, if they take no measures to give effect to such protest, by keeping it closed, or by keeping up such bars and visible signs, as clearly to indicate to travellers, that it is not an open and public highway, they cannot justly avoid the responsibility, which attaches to them. It follows as a neces sary consequence, that whenever by positive act or tacit permission, they suffer a highway to be opened to public use, and to be actually used by the public, the town becomes responsible for its safe condition. These principles we think result from a full view of the statutes on the subject, and they are ■ecognised in the case cited. Bliss v. Deerfield, 13 Pick. 102.
Taking these principles to be settled, we think the question in the present case is, whether at the time the accident occurred, the way in question had been so opened for public use, either by the act or constructive permission of the town, as to *50render them liable. This, in strictness, is a question for a jur35 being a mixed question of law and fact. But as the question has been referred to the Court, upon the facts reported and not controverted, and as the cause has remained long undecided, the Court have thought it proper to pronounce an opinion upon the case as it stands. Considering it as a question of fact, the Court are of opinion that the evidence was properly admitted.
The question then resolves itself into this, whether the lapse of time from the 5th of August, when the obstructions were actually removed, and the road opened to the public, to the 11th of the same month, when the accident occurred, was sufficient under the other circumstances proved, to operate as constructive notice to the town, that the road was so actually opened and used ; and the Court are of opinion that it was. Upon one question raised in the argument, the Court are of opinion, that the contractors to make the road, were not the agents of the town to open it for use, and that the town is not bound by their acts as such agents.
But upon the ground of constructive notice and acquiescence, we think the circumstances are strong. The highway had been laid out and recorded, in due form of law, more than one year previously. The time for completing it as fixed by the commissioners, and by the town’s own contract, had elapsed more than two months. The contractors insisted that the work was complete, and that the selectmen ought then, on the 5th of August, to accept it and open it for use, which they refused. The contractors then opened it themselves, and removed all the barriers and obstructions, which had before indicated that it was unfinished, and they so remain ed six days. It is shown to have been very near the central part of Worcester. The misunderstanding, or difference of opinion, between the selectmen and the contractors, ought to have put the former a little more upon their guard, and excited a little more vigilance on the subject. But it was not the selectmen alone, but the surveyors of highways, and town officers, and citizens generally, who might have taken notice of the facts, which are to affect the corporation. Under these circumstances, the Court are of opinion, that the town had construe the *51notice that the highway was actually opened to the public and used by them, and then it was their duty, if they did not mean to consider the town liable for the safe condition of the road, to replace such barriers, and adopt such other means of preventing the use of it by the public, as to indicate that it was not an open highway ; and not having done this, the town were responsible for the consequences.
Judgment on the verdict for the plaintiffs.