| N.H. | Jan 15, 1870
OPINION BY
I. A majority of the court are of opinion that the evidence excepted to, was properly admitted; see Perkins v. Concord R. R., 44 N. H. 223.
II. The last request for instructions, seems to have been founded bn the mistaken assumption, that when a highwayhas been established by user merely, it is necessarily limited to the traveled path, i. e. that part actually used, so as to have been worn by feet or wheels.
In Sprague v. Waite, 17 Pick. 309 — 317, Shaw, C. J. said, * ‘ Where a tract three or four rods wide, such as is usually laid out as a highway, * * * has been used as a highway, although twenty or thirty feet in width only have been used as a traveled path, still this is such a use of the whole, as constitutes evidence of the right of the public to use it for a highway, by widening the traveled path, or otherwise, as the increase of travel and the exigencies of the public may require.”
We think it was competent for the jury to find that the part of the highway, in which Mrs. Coffin was traveling when 'the accident occurred, had been used bydlie public as a highway for twenty years, although the traveled track had not been in the same place during all that time.
And it was unnecessary for plaintiffs to prove that the highway at the place where the accident occurred, was a. part of the track that had been actually traveled for twenty years ; or, in the language of the plaintiffs’ counsel: “it was not necessary that the particular ruts in which the wheels were running should have existed as such for twenty years.” If the traveled track of the highway where the plaintiff was at the time of the accident, had been traveled in the same place for fifteen years before the accident, and such track, though not the traveled track of the former highway, was within the limits of the former highway as fenced out, and had been within the limits of such highway as thus fenced out, for five years and more before the commencement of said fifteen years, that would be competent evidence from which a jury might find a public highway, at the ' time and place of the accident.
Judgment on the verdict.