Commonwealth v. Petitcler , 110 Mass. 62 ( 1872 )

Wells, J.

The verdict establishes every fact necessary to its support, which it would be competent for the jury to find. The case, as stated in the report, shows that there was evidence which would warrant a jury in finding that a way for the public had been acquired by dedication or prescription.

The defendant contends that the fact that the way was opened over his own land by the owner, for the accommodation of his tavern, fixes its character as a private way. But a road to a tavern, as well as the tavern itself, is not for private convenience only, but also for the public accommodation; and the jury would have been warranted in finding such a road to have been opened and intended for the public use.

He also contends that the facts that both termini of the way were within the same town, and that the town had treated it as such by attempting to discontinue, were evidence that it was a town way, rather than a highway, and so legally discontinued.

Assuming that a town way, as well as a highway, may be established by dedication or prescription, yet the facts relied on, if evidence of a town way, are not conclusive. Indeed the fact that both termini were within the same town is overbalanced by the facts that it formed a connection between two highways, and that the only special purpose shown, for which it was intended, was to conduct the public travel from those highways to a public house. But the decisive answer to this defence is, that it was competent for the jury to find it to be a highway, and therefore the verdict must be so taken.

The record of the county commissioners was not competent to prove the non-existence of a public highway, and was properly excluded. Their decision upon the question of common convenience and necessity is an adjudication; and, as such, is conclusive upon every one. But the question whether there is or is not-an existing highway, although involved in their decision incidentally and as a preliminary fact, is no part of that adjudication. If they refuse to locate a highway on the ground that a highway already exists, or to discontinue on the ground that there is no highway, the fact being otherwise, they may be required, by mandamus, to proceed and adjudicate the question of common convenience and necessity. This illustrates the distinction. One of the questions is within their peculiar jurisdiction, and upon that their decision has the force of a judgment; the other is not.

Judgment on the verdict.