The opinion of the court was delivered by
Kellogg, J.The defendants insist, that this indictment is not sustained by the evidence, — that it should have been an indictment for not making and opening the road.
If we are to regard the road in question as a new road, which had no existence prior to the survey of 1844, and which had not been made and opened by the proper authority and had not been recognized by the town as a public highway, it would be very clear, that the indictment under consideration (which is for not repairing an existing highway) is not adapted to the case. In that event the indictment should be for not making and opening the road. But we think, the facts neither require nor would justify us in so regarding the case. Here was a road of many years’ standing, laid out and made by proper authority, and which had long been used by the public. This road, or rather that part of it which lay within the town of Alburgh, and over which they could have any control, was only a rod and a half wide, and consequently was inadequate to the wants of the public. It, however, has never been discontinued. The survey of 1844 was not, in fact, the survey of a new road, though the selectmen so call it in their survey bill; but it was simply enlarging the limits of an existing highway, so as to make it comport with the requirements of the law and such as public convenience demanded. It was providing for the widening of the old road. And the neglect of the town to make this old road of suitable and sufficient width was a neglect to repair the road, within the meaning of the statute, and we think the present indictment well lies to enforce this duty.
The defendants will take nothing by their exceptions.