18 Vt. 493
Vt.
1846

The opinion of the court was delivered by

Williams, Ch. J.

This is an action against the town of Wbeelock, to recover for an injury sustained by the wife оf the plaintiff, who was travelling in the town, by reason of the insufficiency of the road on which she was travelling. Towns are made liable, by statute, for all damages occasioned tо individuals by reason of the insufficiency of a road, which they are obliged to keep in rеpair. They are bound to keep in repair all roads, which have been legally lаid out and opened for travel.

The evidence, that a road has thus been laid out аnd opened for travel, is usually to be found on the records of the town. The survey, the aсt of the selectmen, or commissioners, together with the certificate, that the road has been opened, are required to be recorded. ‍​‌​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​​​​​‌​​​​​​‌​‌​​‌​‌​‍And when resort is had to any оther evidence than the records of the town, as prescription, or usage, it supрoses, that the highway is, or has been, legally laid out and established, and that the record has either been lost, or was omitted to be made.

The different modes, in which highways are laid out, established and opened, have frequ ently been before the court, and it is not neсessary now to refer to them. The cases were intended to establish the law on this subjeсt, so that the rights of all who were con*496cerned might be readily ascertained. Whether а road is legally established does not often enter ‍​‌​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​​​​​‌​​​​​​‌​‌​​‌​‌​‍into the mind of the traveller, nor can we suppose, that, in selecting the path he is to take, he has any reference to the liаbility of a town, or any view to a future recovery for damages, which he may sustain. The inquiry, therеfore, which is often made in argument, whether the traveller is to look to the records tо see whether the officers of the town have done their duty, before he travels on а road, is of no consequence, and the argument founded on the inquiry is altogether fallаcious. If he sustains an injury by his own neglect, by misfortune, or by the badness of a road, before he сommences a suit against a town, he must, by a recourse to the records, or elsewhere, ascertain and be prepared with evidence to prove, that the highway wаs so established and opened, that the town is liable under the statute.

Whether a road is thus lеgally established and opened depends generally on a question of law, to be dеtermined by the ‍​‌​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​​​​​‌​​​​​​‌​‌​​‌​‌​‍court, though in some cases it may involve some question of fact, to be determined by the jury, as in the case of Blodget v. Royalton, 14 Vt. 288. In the case before us it was wholly a question of law. The plaintiff endeavored to show, that a highway was laid out by the selectmen of the town in June, 1841. The place, where the injury happened, was on the road then surveyed. This road never had been opened by recording a certificate to that effect on the town records. It was evidently a case, where the agents of the town were the proper judgеs when the road should be thus opened, and when they would assume the responsibility of treating it as an open road; ‍​‌​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​​​​​‌​​​​​​‌​‌​​‌​‌​‍and they might withhold their certificate, until they were satisfied. They were first to make the road; and for this purpose the work thereon in the autumn of the year 1841 and by the highway surveyor in the summer of 1842 was done, with a view to make this such a road as it would be safe to open for public travel.

The act of Mr. Hanscomb was no act of the authorized agents of the town. The including the new road in the survey bill, if it was so included, as I have already remarked, may have been for the purpose of making the road thus surveyed. The casе, however, does not show, that it was thus put into the survey bill; but the termini of the road put into the survey bill included both the old and new ‍​‌​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​​​​​‌​​​​​​‌​‌​​‌​‌​‍road, and, if relied on as evidence to establish the existencе *497of a highway, (for which, however, it was wholly insufficient,) was as strong evidence to establish the old road as the new.

There was no evidence in the case, that the road surveyed in June, 1841, was ever legally opened for public travel; and if the town were negligent, or remiss, in mаking or opening it, there are other methods to compel them to perform this duty. The county court were right, in deciding that the road was not established and opened, so as tо make the town liable. If the case had been submitted to the jury, no other question could have been presented, than whether the plaintiff, or the town, was best able to bear the loss ; and we do not recognize this as a legitimate issue to be tried by a jury in a court of justice.

The judgment of the county court is affirmed.