Avery v. Stewart

Wilde, J.

This is an action of trespass quare clausum fregit, and the defendants justify the alleged trespass, on several grounds. In the first place, it was contended, that the locus was a public highway; and evidence was offered tending to prove a dedication of the same, and a usage of the inhabitants of Richmond, and the public generally, to pass over said road^since the year 1799.

To rebut this evidence, the plaintiff introduced the records of the town of Richmond, to prove a laying out of the way in question in 1799, and that afterwards, in 1840, the same way was discontinued by the said town. To the introduction of this evidence, the defendants’ counsel objected ; but the objection was overruled, and the evidence was admitted ; and 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 ; for it was stringent if not conclusive evidence to prove the commencement of the way, and to rebut the presumption of a dedication of a public highway. It is also good evidence to authorize a presumption of a grant, or a confirmation of the way as actually used by the owners of the land.

There is no doubt, that the inhabitants of a town, in their corporate capacity, are capable of taking an easement, or other incorporeal hereditament, and that they may become seized of a right of way, by grant, prescription, or reservation. So the doctrine was laid down, and we think correctly, by Morton, J., in the case of the Comm'th v. Low, 3 Pick. 412. It may be difficult to decide, whether the long user of a way, by the inhabitants of a town, and by others, would authorize the presumption of its being a public highway, or a town way, when there is no evidence of the laying out of the way. That was the difficulty in the case of the Comm'th v. Newbury, 2 Pick. 51. But, in the present case, that difficulty is removed by the records of the town, proving that the way was laid out as a town way. Certainly the evidence admitted was competent and pertinent evidence for the consideration of the jury, in determining the question, whether the way was a public or town way.

The next question is, whether this way has been legally discontinued. The objection is, that the warrant, calling the meeting for that purpose, did not give sufficient notice of the proposed action of the town upon the road in question. The eighth article of the warrant was as follows: “ To see if the town will lay out, alter, or discontinue, or otherwise dispose of, any town way.” This, we think, was sufficient notice to advertise the inhabitants of the town, that they would be called upon to act on the subject of laying out or discontinuing or altering any town way; and that it was not necessary to give any more particular notice. In the case of Blackburn v. Walpole, 9 Pick. 97, it was decided, that, in order to render valid a vote of a town granting money for a particular object, it is not necessary that the warrant for the calling of the meeting should state specifically that the inhabitants will be called to act on the question of granting money for that purpose, if the subject to be acted on is one which will be likely to require a grant of money. This point, we think, was rightly decided, and it is a strong decision in favor of the sufficiency of the notice in the present case.

It was also objected, that the vote of the town, upon this article of the warrant, was not sufficiently definite, in the description of the road attempted to be discontinued. The vote was, to discontinue the road leading from William Gates’s to the pond ; and it was competent for the plaintiff to prove where William Gates resided, and thus to establish the identity of the road. And it must be presumed, that such evidence was given, to the satisfaction of the jury, nothing appearing in the report of the case to the contrary.

On the evidence reported, the court was requested, by the counsel for the defendants, to instruct the jury, that if they were satisfied, that the way in question had been used by the public generally, by people coming from different parts of the commonwealth, for more than twenty years, then it was a public highway, which the town had no right to discontinue. The court declined so to instruct the jury; and we are of opinion, that any such instruction would have been erroneous. Persons from other towns have a right to use a town way, as well as a public highway. The court therefore very properly left it to the jury to decide, on the whole evidence, whether the way in question were a public or a town way. That was a question of fact for the jury to decide ; and we find nothing erroneous in the instructions.

Exceptions overruled.