59 Me. 366 | Me. | 1871
By B,. S. 1857, c. 17, § 1, “ the obstructing or incumbering by fences, buildings, or otherwise the highways, private ways, streets, alleys, commons, common landing-places, or burying-grounds," shall be deemed nuisances, within the limitations and exceptions hereafter mentioned.” The limitations and exceptions do not, however, affect the questions presented for adjudication.
The complaint, on the trial of which the defendant was found guilty, alleges the obstructing and incumbering “ a public highway and traveled road ” and “ a certain street ” in the town of Cranberry Isle.
There was no proof of the laying out of the road, but the government offered to show that this road or way had, for thirty or forty years, been an open way or road, with well-defined limits, and used by the citizens and the public in the same manner and to the same extent as town ways and highways are used.
The presiding judge instructed the jury that if they found there
To this ruling exceptions were duly alleged, and the only question presented is as to their correctness, in not requiring record evidence of the laying out.
By R. S. c. 1, rule vx, “ The word highway may include a county bridge, county road, or county way.”
Highways extend from one town into another, and are laid out by the county commissioners.' R. S. c. 18, § 1.
Town and private ways are wholly within the limits of the town, and are laid out by tlie municipal authorities. R. S. c. 18, § 18.
The road in question, being wholly within the limits of an island, is a town way.
In Commonwealth v. Newbury, 2 Pick. 51, it was decided that the user of a way by the inhabitants .of the town where it lies and of the adjacent towns, was not sufficient to establish it as a town way on the presumption of an ancient laying out or grant. But on this the court were divided. In Commonwealth v. Law, 3 Pick 409, it was held, that the establishment of a public town way could not be presumed from an user of any length of time. In Stedman v. Southbriclge, 17 Pick. 162, a suit was brought against the defendant town for a defect in a town way. The plaintiff offered evidence, subject to the defendant’s objection, that it was an ancient road used by the town and public, and kept in repair by the public, having first failed in his attempt to prove any location by the town officers. The exceptions to the admission of evidence were overruled. “ It is, perhaps, too much to say,” observes Shaw, C. J., “ that such a way (or town way) or any other kind of easement, cannot be thus proved; but it would be manifestly difficult, because,
In this State, in State v. Sturdivant, 18 Maine, 67, it was held, that to maintain an indictment for the obstruction of a “ town and private way ” it must be shown, that such way was laid out and established pursuant to the statute provisions, proof of a user for twenty years or more not being sufficient. This decision is based upon the law as laid down in Commonwealth v. Law, 3 Pick. 408. In State v. Berry, 21 Maine, 169, the case of State v. Sturdivant, was reaffirmed. In State v. Bigelow, 34 Maine, 245, the defendant was indicted for obstructing an highway in the town of Liver-more. In defense it was contended that the "way was a town way. In delivering the opinion of the court, Shepley, C. J., uses the following language: “ The supreme court of Massachusetts, having expressed an opinion in the case of Commonwealth v. Law, 3 Pick. 408, ‘ that a town way can be established only in the mode prescribed by statute of 1786, c. 67,’ this court yielded its assent to that decision not without some reluctance.
“ In the case of Commonwealth v. Belding, 13 Met. 10, that court reexamined the question, and came to the conclusion that with ‘ the proper evidence it would seem reasonable that a town way might be shown, as well as a public highway, without in all cases producing a record of its establishment as a town way.’ The instructions
The result of this examination is that the existence of a town-way may be established by evidence other than the record of the laying out of the same by the municipal officers.
In Maine v. Strong, 25 Maine, 296, it was decided that an indictment charging a town with neglecting to keep in repair a public highway within its limits is not sustained by proof of the existence of a town or private way. So it was held in Cleaves v. Jordan, 34 Maine, 9, that the word highway, when used in a statute, is restricted to county roads or county ways, unless its connection should require a different construction. These decisions- only recognize the distinction between county and town ways, and that the existence of one is not proved by evidence of the legal establishment of the other.
A way may be proved by prescription. It is immaterial whether the origin of the way be by- grant or dedication and an acceptance by the town, or whether a legal laying out is to be inferred from the long-continued use and repair of the same by the public. Whether the road thus proved to exist is an highway or a town way
By recurring to the instruction given, it will be perceived that it was full, clear, distinct, and very carefully worded, and in entire accord with the law upon the subject.
In Todd v. Rome, 2 Greenl. 55, it seems to be decided that a town is liable for defects in a town way which has been used by the public for twenty years. In Rowell v. Montville, 4 Greenl, 270, it was held, that no adverse appropriation or use of land for a road, for a period short of twenty years, is sufficient to raise the presumption of a grant. The road in that case was a town way, and the infei’ence is, that a continued user for that period would be sufficient to raise such presumption. In Estes v. Troy, 5 Greenl. 368, Mellen, C. J., says: “After a road has been opened, continued, and traveled for twenty years, without interruption or incum-brances, it may be considered and treated as a public way ; for such a user for that term takes away the right of entry of the owners of the land and gives the town a right to enter upon and repair it.”
In State v. Bradbury, 40 Maine, 154, it was held, that in the absence of any vote of the town, the acceptance of a way by dedication would not be inferred from a user short of twenty years. A road may be established by user, and the rights of the public will bo in accordance with such user. Hinks v. Hinks, 46 Maine, 423. The existence of highways may be established by proof of location, prescription, and acceptance, and the proof of a continued user, for over twenty years, of a way is evidence of the existence of a highway where the user was adverse. Mayberry v. Stundish, 56 Maine, 342. In the present case the user was continuous and unrestricted for more than that period by the public. This user, by the very terms of the instruction, was obviously adverse. The fact that for more than twenty years, during all those years the town had made repairs upon it, was evidence, which, not rebutted, was sufficient to establish an acceptance, if the way was by dedication or grant.
The instruction given is in accordance with the weight of judicial authority. The exceptions, therefore, must be overruled.