| Vt. | Feb 15, 1831
delivered the opinion of the Court. — The point which is presented in this case for consideration is one of considerable practical importance. When a road islaid through the lands of one of our citizens, it is necessary that he should be enabled to know when his dominion over the soil ceases, when he is no long-
Whenever a public road is opened, the right of theowners of the land to keep.it enclosed ceases, and the right of individuals to the use of the road, and liability of the town commences. This opening should be by some act sufficiently open and notorious, to apprise the persons interested of their duties, rights, and liabilities } and the present case calls on us to decide what is the evidence of such opening. In order to do this it may be proper to examine briefly the several acts which have been passed on that subject, and the history of legislation on this particular branch of law.
‘ By the general statute of 1797, all roads within the towns were to be laid out by the select-men, or, on their neglect, by a committee'appointed by the county court; but there was no provision for laying out a road through more towns than one. Hence applications were repeatedly made to the legislature, when a road was wanted through several towns, and they usually by a special act appointed a committee for that purpose, and prescribed their duties in the act; but no provision was made, either by the general or special acts, for opening the roads. The consequence was, that when the towns or the select-men were adverse or unfriendly to the road laid out by the committee from the legislature,they neglected either to make or open the road, and thus rendered nugatory the proceedings of the committee. In 1806, an act was passed making it (he duty of the select-men to open a road laid by a committee appointed by the county court, or by the legislature, within one year, and subjected them to a penalty of five dollars a month for’neglect. This act-was found to be insufficient, and in 1818, another act was passed still continuing this duty upon the select-men, and, in case of their neglect to perform the-same, subjected the inhabitants of the town to a penalty of thirty dollars a month for each month the select-men-should so neglect. In 1821 the towns were made liable to an indictment for not making and opening a road laid out by a committee, and, on conviction, subjected to a fine, equal to the whole expense of making the road, to be laid out under the direction of a committee appointed by the 'court where the conviction was had. In 1825,
It will be seen from the history of the legislation on this subject, that after the act passed in 1806, it was the duty of the selectmen to open all public roads, and that it occasioned repeated acts of the legislature to enforce the performance of this duty. It seems from another act which was passed, and it is within my recollection that such was the case, that disputes and doubts had arisen as to what was opening a road, and what was the proper evidence thereofto prevent these disputes and doubts, an act was passed in 1820, requiring the select-men, when they opened any road which had been, or which should be, laid,to cause a certificate thereof, signed by'them,or á major part of them,to be forthwith recorded in the town clerk’s office, and declaring that the day on which such certificate was recorded should be taken and deemed to be the day of opening such road. This act continued in force until the session of the legislature last fall, (1830,) when upon a digest' and revision of.all the laws upon the subject of roads, a similar provision was made as to opening roads and recording the certificate thereof, as was made by the act of 1820. The Court consider'that the recordingof this certificate is the proper evidence of opening a road. It is an act simple, notorious, and well calculated to apprize all of their rights and duties. When this is done, all persons are to take notice of it as the opening of a public road ; those duties, rights and liabilities, which arise from the opening of a public road,then commence: and until this is done, the owner of the soil is not under obligation to remove his fences, nor can individuals intrude thereon as on a highway opened for public use, nor are the towns liable for the insufficiency thereof.
The powers of imagination have been called forth to describe the inconveniences which the traveller might be subject to from this view of the law ; but I apprehend these inconveniences are merely ideal, and have no existence except in the imagination. On the other hand, a different construction of the law would subject both the owner of the soil and the towns to far greater inconveniences and trouble than could possibly happen to the travel-ler from the view we have taken.' These, however, are not considerations which can have much weight with a court whose duty it is to declare, and not make, the law.
It has been urged that the road, which is the subject of controversy in this action, was laid out by road commissioners under the act passed in 1827, and that the act of 1820 is not applicable to
The law of 1827 gave to the road commissioners all the power which had before been exercised by the committees appointed by the supreme or county courts, and these were the same which had formerly been exercised by committees appointed by the legislature. By the 4th section, whenever .the commissioners laid out a road, they tyere directéd “ to make order of the time within which such road shall be made and opened”. Their decision,both as to'laying, making and opening the road, and as to the damages, are final and conclusive. In their order, two things are contemplated, viz. that the road shall be made, and that it shall be opened ; and it is in the nature of an adjudication by them, imposing a duty upon the towns or their agents to perform the acts required of them, by the time limited. This order, however, neither makes nor opens the road, but requires this to be done by the towns, or the select-men, in the same manner that it was to be done before, if the road had been laid by a committee appointed by the supreme or county court, and established by such court. The order does no more than to determine that a road shall he made and opened in the place directed. For the purpose of making the road, the select-men, or.agents appointed by the town for ' that purpose, are authorized to commence work immediately. They may entpr upon the land and do all the work requisite to make the road, doing no unnecessary damage, and doing nothing more than is necessary for building and constructing the bridges and the road. The owndr may still keep it enclosed with his other possessions, and make usé of it for any purpose not inconsistent with the exer.cise of the right of the town before mentioned. When this road is made, so as to be sufficient for public travel, it is thén the duty of the select-men to open the same in the manner pointed out by the act of 1820. Whenthis is done, a public road is opened, which the owner of the soil, the traveller and the towns, must regard as such.
It has been objected to-this, that the select-men may refuse to open the road, and thus deprive the public of the benefit of the ad
The conclusion to which we arrive is this, that when the commissioners establish a road, the towns may immediately make it ; that it is the duty of the select-men to open the road when they think proper ; but when they do open it, they must cause a certificate thereof to be recorded in the town clerk’s office; that until the road is opened, the owner of the land may lawfully keep it enclosed with a fence, and that no one can wantonly throw it down. The plaintiff, therefore, had a right to have his fence around the land on which this road was laid, and the defendant was not justified in throwing it down.
The judgement of the county courtis therefore affirmed.