| Vt. | Jan 15, 1839
The opinion of the court was delivered by
The question made in regard to the want of evidence of the turnpike inspectors-being sworn, cannot avail. All officers, having general duties assigned them by the statute, if shown to have acted, and to have been recognized as such, are presumed to haye- been regularly appointed, commissioned and sworn. And even special officers, whose appointment is shown, and who have assumed the functions of the appointment — e. g. auditors in actions of account — .will be presumed to have taken the appropriate path. Putnam v. Dutton, 8 Vt. R. 396.
In regard to the right of the plaintiffs to keep up a gate upon what was originally the public highway, previously to their act of incorporation, the court have not been able to perceive any good ground to doubt. Whether a turnpike company would be justified in surveying their road along a previously' existing highway, so as to supersede and thus discontinue such highway, must depend upon the intention of the legislature, to be ascertained in the same manner that intention is reached in relation to other statutes. There can be no doubt of the power of the legislature to make a valid grant to-that effect. The town or its inhabitants have no more interest in the highways within its limits, than any other citizens. The public highways throughout the state are of general concern, and, as such, must of necessity be perpet
The court think, that the act of incorporation having appointed a committee to locate the road, and that committee having fixed it upon the old highway, is equivalent to an express provision in the act to that effect.
If it were not for this, the fact that the plaintiffs have been permitted, for more than twenty years, to enjoy the right without molestation, would be equivalent to an express grant, and would preclude any interference on the part of the town. Indeed, under special circumstances, the dedication of private property to public use, or the abandonment of a right to use such property by the public, and its surrender to private use, will be presumed in a much less time than the usual term of prescription.
The fact that the inhabitants of Panton had all along been permitted to pass the plaintiffs’ gate, toll-free, presents no obstacle to the plaintiffs’ acquiring an exclusive right to use the old highway in the manner claimed. This would, at most, give the inhabitants of that town a prescriptive right to pass the plaintiffs’ gate, toll-free. If this right were denied any or all the inhabitants, it would give no light to the town to interfere, in its corporate capacity, and demolish the plaintiffs’ gate, by way of abating a nuisance. Any citizen, denied permission to pass as he had been accustomed to do, might, perhaps, be justified in passing forcibly, but he could, at most, only use such force as was necessary for that purpose. He could not demolish the gate to-day, because he expected some citizen of the town would wish to pass tomorrow, even although the plaintiffs insisted they should not permit such citizen to pass; nor could the selectmen of the town do the same for the same purpose, any more than one who had been permitted to pass the gate could return and destroy it, lest it might afterwards be shut against some one
And it is equally well settled, that one, who claims to do an act in one right, shall not afterwards be permitted tojrefer the act to another right, and for a different object. The defendant, who claimed to demolish the plaintiffs’ gate as a public nuisance, by virtue of his authority as selectman, under a vote of the town of Panton, cannot, now that he appears to have acted' in such capacity, wholly without justification, be permitted to justify his conduct, as an inhabitant of Panton for the purpose of passing the plaintiffs’ gale. Judgment of the county court affirmed.