The opinion of the court was delivered by ,.
Williams, Ch. J.It appears in this case that the plaintiff introduced testimony tending to prove that the injuries he sustained, and for which this action was brought, happened in the fall of the year 1S37, and in the spring of 1838, and it was incumbent on him to show that they happened from the insufficiency or want of repair of a highway in the town of Royalton.
So far as it was considered necesssary by the plaintiff to *294show a road legally laid out, surveyed, and opened, agreeably to the requisitions of the statute, he certainly failed in the legitimate proof. The copy of the records of the supreme court in Orange county, and the proceedings of the court, and of the committee, was not so certified as to be admitted in evidence, and no evidence of the opening of the road, by lodging a certificate thereof with the town clerk, was produced in evidence or ever existed. The case of Patchin v. Morrison, 3 Vt. R. 590, and the case of Patchin v. Doolittle, same vol. 457, were well considered, and intended to lay down a rule applicable to the subject, in all the cases embraced or supposed in the opinions there given, In the case of Warren v. Bunnell, 11 Vt. R. 600, the subject was again under the consideration of the court, and it was determined that a road could only be devoted to public use in a particular manner. Until it is so devoted, the owner of the soil may keep it inclosed, fence out all except those who come to make the road, and the selectmen may determine when, in their opinion, the road is sufficiently made, so that it will be safe to open it for public travel. And surely no road can be considered as legally made and devoted to public use, which may be shut up by the owner of the soil, and which the selectmen do not consider as safe and proper for public use.
It is not, however, to be inferred from those cases, nor from the opinion already expressed, that a town is never to be considered as liable for injuries happening from the insufficiency of a highway, which has not been opened in the manner pointed out. The words of the statute are, that ‘ the towns shall be liable for damages happening through ‘ the insufficiency or want of repair of any highway, or public ‘ bridge, which such town is liable to keep in repair.’ Hence, we think they would be liable for the insufficiency or want of repair of any highway which they may have adopted as a public highway for travel, notwithstanding they may not have opened it in the manner pointed out. If the town, or the selectment, as their agents, shut up an old road, and leave no other avenue for travel, except on a road which they have made or caused to be made, or if they put the same into the rate bills of the highway surveyors, as a public road, on which the highway tax is to be worked, the town would be *295liable to the traveller for the insufficiency of such road, though the selectmen may have omitted to lodge the certificate.
An indictment against a town for not repairing or keeping in repair a highway, with either a verdict or plea of guilty, and a judgment thereon, would be very strong evidence, if not conclusive, that the highway was such an one as the town were liable for to individuals, as well as the public, and it may well be questioned whether they would be at liberty, after verdict and judgment, to deny that it was a highway, or to require any other evidence either of the surveying, laying out, making or opening thereqf. An indictment simply for not opening a road might not present the same question, although we are not prepared to say that if such indictment was found, a conviction had thereon, and the road made by a committee appointed for that purpose, the town could further contend that the road should not be treated as a public highway, and that they should not be held liable to individuals as well as the public.
We cannot say, in the present case, there was mo evidence of the road in question being such an one as the town or selectmen had adopted, so as to have justified the court in excluding it. Some of it was improperly admitted, as we have already intimated, and the whole required a more particular and specific charge, to prevent its having an improper effect. What the record of the indictment and judgment thereon would have proved, we cannot say as it has not been shown to. us. The charge left to the jury to determine, what would constitute an opening of the road, and a public highway, without in any way stating to them what the law required, thus leaving them to adopt such a construction of the law, on this subject, as they thought proper. It was the province and duty of the court to determine the law.
The consent merely of the selectmen, that any person should travel on any path, whether a public or a private road, is no act recognizing such road as a highway for which the town is responsible, neither is their knowledge that a traveller on such road supposes it to be a public highway of any importance, unless, by some act of theirs, it can be inferred that they have opened the road or adopted it as a highway to be repaired by the town. The charge in these particulars *296was erroneous, and the judgment of the county court is there- , f°re reversed.