The opinion of the court was delivered by
Wheeler, J.It is not denied that the plaintiff’s evidence tended to show that special damage happened' to him in such a manner that the defendants would be liable for it if the place where it happened had been a public highway that the defendants were bound to keep in repair; but it is denied that the evidence had any tendency to show that the place was such a highway. The case is wholly barren of any evidence that the road .was ever laid out and established as a highway, and of any evidence that the selectmen of Essex have ever taken any action in regard to it, and it is claimed that the burden of keeping it in repair can not have been fastened upon the defendants but by its having been regularly laid out, or through the action of the selectmen.
The process of laying out highways is gone through with for two purposes: one to acquire a right to the necessary land as against the land owner, the other to fasten the duty of building and keeping them in repair upon the towns in which they are situated. When the land-owner has given up his land to the public use for a highway, and the town has voluntarily taken upon itself the burden of keeping it in repair, the same end is attained that would have been if it had been laid out with all the statutory formalities. The assumption of the burden is the act of the town ; and although it may be, and probably most often is, manifested by the acts of the selectmen, it is not through them alone that a town can assume the burden, and proof of the assumption is not necessarily confined to proof of their acts. Any evidence that shows that a town has kept a road in repair, within its limits, has a tendency to show that the burden of keeping it in repair has either been cast upon the town by the necessary proceedings, or that the town has voluntarily assumed the burden without any proceedings.
In this case the plaintiff testified that he was forty years old and had lived in Essex ever since he was two years old; that he was acquainted with the road in question, and that it had been kept in repair by the town ever since he knew it. Clearly this *526testimony liad a tendency to show that the town kept this highway in repair because it was its duty to do so.
The defendants also claimed that the evidence does not tend to show that the walk over which the plaintiff was passing was ever adopted as a part of the highway, even if it does tend to show that the highway itself was adopted.
The evidence showed that this road was in a village, where there were stores, a hotel and post-office, between which there would naturally be considerable foot-travel. ’ The path over which the plaintiff was passing lay between the hotel and one store in one direction, and the post-office and another store in the other direction, and was the only suitable place for foot-passengers to pass upon at that place, and was close beside the carriage-path. According to this evidence, the highway had, at this place, one path for foot-travel and another for carriage-travel, and one path was adopted as much as the other. No work had been done by the defendants on either path at this particular place, but the evidence tended to show that work had been done at various places each way from this one on this road, and in that way tended to show that the road at this place had been adopted. The road was for foot as well as for carriage travel, and it cannot be said, as a matter of law, that the only proper place in the road for foot-travel was not adopted for that purpose as fully as the carriage-path was for carriage-travel. The plaintiff was a foot-passenger, and if he had unnecessarily left the -path commonly used for foot-travel, and taken the one used for carriage-travel, and received an injury there for which he sought to recover of the defendants, it would at least be a question proper to submit to the jury whether he was not in fault in leaving the foot-path.
It is further claimed that the floor of the hay-scales, over which the plaintiff was passing when the damage happened to him, could not have been adopted by the town as a part of the foot-path, so that the town was bound to keep it safe for foot-travel, because the scales were owned and controlled by private persons. The purposes for which hay-scales are ordinarily used are not so absolutely inconsistent with the use of the floor of them by the public as a part of a foot-path, that it could not have been adopted by *527the town for that purpose while the owners kept control of them for their ordinary uses. The use of the floor as a part of the scales by those having control of them would commonly be but a few moments at a time, at long intervals, and when not so in use it would be as suitable as any, and more suitable than most ground for a foot-path. The fact that the owners had permitted the public to use it for a foot-path for so long a time was sufficient evidence to be submitted to the jury, upon the question whether the owners had in fact given up the floor to the use of the public for that purpose.
It is also further claimed that the former decision, made by this court in this case, (38 Yt., 270,) covers the points now raised. When that decision was made the county court had held and charged that the undenied continuous use of the foot-path over the scales, as á part of it, by the public, for thirty years, independently of any working or preparation of it- for travel by the town, the town knowing of such use and doing nothing to prevent it, rendered the town liable for its want of repair. The evidence upon which that charge was made was very different from that now presented. Then it appeared that the town had kept in repair a traveled track, sufficient and suitable for all travel, besides the one over which the plaintiff was passing, and that the path over which he was passing was a narrow foot-path, fifteen or twenty feet south of the traveled track, passing over the ground in its ungraded and natural condition, except where individuals had slightly graded it in front of their own premises. This court held that charge of the county court to be erroneous. It is obvious that the decision then made does not conflict with the one now made.
The judgment of the county court is reversed, and the case remanded.