Closson v. Hamblet

27 Vt. 728 | Vt. | 1855

The opinion of the court was delivered by

Redfield, Ch. J.

I. The first question made in the case is, as to the effect of straightening a highway, by the selectmen of a town, with the consent of the land-owner. The 7th and 8th sections of chapter 22 of the Compiled Statutes seem to imply that the selectmen shall have power to resurvey highways, in the condition of this very road, when the original survey is not recorded, or to widen old highways. And this implies the right to straighten the road. And, if the alteration supersedes the necessity of the use of any portion of the old road, it is discontinued, of course, by the very act of opening a substitute. This has been decided in Massachusetts, and recently recognized by this court, in regard to changing the bed of a railway. And we do not think it necessary in making an alteration of the character here described, which is really nothing more than straightening the highway, to record either the alteration or the opening for public travel. The fact of the alteration being made, and the straightened road being opened, in fact, for travel, under the direction of the selectmen, made it a public highway, to all intents, by acquiescence of the authority of the town, who have the control and are liable for the sufficiency of the highways, within their limits. This is not such a deviation as really constitutes a new highway, as in the case of Young v. Whee-lock, but is really the old highway, with such slight deviations as do not destroy its identity, and, therefore, the town are bound by the deviation, and the public, who find this avenue for travel open, and no other, are at liberty to use it. This is the highway, and the former highway is, in fact, and in law, discontinued, and the public have no more right to use the old highway than any other of the adjoining land, which is only when the highway becomes dangerous and impassable. This is virtually decided in Battey v. Duxbury, 23 Vt. 714.

As the only proper question of fact arising in the case, whether the defendant left the highway, as opened, in the first instance, from reasonable necessity, was wholly withdrawn from the consideration of the jury, the judgment is reversed, and case remanded.