Chadwick v. McCausland , 47 Me. 342 ( 1860 )

The opinion of the Court was drawn up by

Tenney, C. J.

Copies are referred to in the bill of exceptions, as a part thereof, which are not before the Court. Rut they do not appear essential to a correct disposition of the case.

The acts complained of by the plaintiff, as a trespass of the defendants, are understood to have been performed in repairs upon a road, under municipal authority. Evidence was introduced tending to prove that the road had been long used for the travel of foot passengers, so that the public had an easement upon the land over which it passed.

The first instruction complained of was, “ that if the public had acquired such right, as incident to that right, the defendants, under the direction of the town, would have the right to make such repairs by levelling the land and laying side-walks thereon, as was necessary to make the same safe and convenient for travelers on foot.” This instruction is sustained by the authorities cited by the defendants’ counsel.

Assuming that the road, attempted to be shown as laid out in 1852, was legally located near the one alleged to be established by user, the Court cannot necessarily, treat the latter as discontinued thereby, when the record is silent upon that subject, consequently tbe public easement would remain as before.

The land described in the deed to the plaintiff would not be affected in its boundaries by the location of the road laid out in 1852. If the northern boundary in that deed was by the road first referred to in the exceptions, and the plaintiff’s land extended to the centre of that road, that boundary would undergo no change by the location o.f the new road. The establishment of a road cannot give title to one in land to which he had none before. Exceptions overruled.

Rice, Appleton, Cutting, May, and Goodenow, JJ., concurred.