| Vt. | Jul 15, 1843
This case has once before been to this court, and so far as this question was then considered by the court, it must be regarded as settled. The defendants seek immunity from the liability imposed upon towns for damage sustained by individuals by reason of the insufficiency of a road, upon the ground that the selectmen had not caused a certificate of the opening of the road to be recorded in the town clerk’s office. And this brings up the inquiry, whether there is any other way in which this liability can be fixed upon a town. If this was a road that the town of Royalton was “ liable to keep in repair,” then the town, by the statute, would be “liable for damages happening through the insufficiency, , or want of repair, of the road.” It has been repeatedly held that a public highway may be created by adoption, and, by such adoption and use of it, the owner loses his right to fence up and control the use of the land. And when this court had this case under consideration before, it was expressly so held by the court. If that point is established, it only becomes necessary to examine whether the charge of the County Court upon this point was a departure from this rule.
The court charged the jury that “ the opening of the road could not be effected by the act of an individual, — but must be by the certificate of the selectmen duly recorded, or by some other act of the selectmen, unequivocal in its character, and clearly inconsistent with any other honest intent, but that the road should be an open highway ; or there must be some corporate act of the town to the same effect.” This charge of the court must be correct, if any thing short of the record is to have the same effect.
But it is said that there was no such unequivocal act of the selectmen. The case finds that this road, de facto, was laid open in the fall of 1837, and was then travelled, and was afterwards continued to be open and travelled; and that in April, 1838, the selectmen, defacto, discontinued the old road, and caused it to be shut up, leaving no open way for the travel to pass, except upon this new road. And the case farther finds, that, by direction of one of the selectmen, a portion of the highway tax was laid out upon this new road in June following. These acts could hardly be called equivocal.
There is one farther objection to the charge of the court. The court instructed the Jury “that the town was liable only for such damages as had happened to the plaintiff from the insufficiency of •said road, after said decision and fencing up the old road, in April, 1838, and that for such damage, the town was liable, regardless of who first took down the fences on said new road.” The defendants offered testimony tending to prove that the plaintiff’s stage driver took down the fence, on said new road in November, 1837, and drove the plaintiff’s stage through on said road. This has no tendency to change the character of the transaction. It was not the first taking down the fence, but it was the shutting up the old road and permitting the new road to remain open, that was characteristic of the intention of the selectmen. The fence might as well have been taken down by the plaintiff as by any other person. When the selectmen shut up the old road, and thereby compelled the travel to go upon the new road, and left that open, and made no other provision for the public, for all the purposes of this inquiry it became their act, and the town, by acquiescing in it, have adopted the road and made it their own.
Judgment affirmed.