Heald v. Moore , 79 Me. 271 ( 1887 )

Peters, C. J.

Only one question in this case needs to be discussed, the findings of the jury having disposed of all others. And that question must be determined against the plaintiff, even accepting the interpretation of the facts as claimed by him. Let it be admitted that the case finds that, in 1804, a town road was laid out, three rods wide, the centre line of which was the southerly boundary of plaintiff’s land ; that he built a fence on his side of the road and on his line ; that there was also at the same time a fence on the other side of the road, the located road being three rods in width between fences; that the same fences have been continued on the same lines ever since they were built ; that, in 1846, the county commissioners laid out the road anew over the old location, but widening it on each side a half rod, thereby making it a four rods road instead of three; and that a half rod in width of the located road on each side has been within the fences of the coterminous proprietors for thirty-seven years, the fences having existed more than forty years.

The plaintiff invokes certain statutory provisions as sustaining his claim. R. S., c. 18, § § 36, 95. One section provides that a highway which has been duly laid out shall be considered as discontinued unless actually opened within six years from the time allowed therefor. The other provides that a fence which has continued in the same place on a road for forty years, will be justified in remaining thereon, — ‘shall indicate conclusively the true line of the road.

It would seem to be a strange result, if a forty years’ continuance of a fence is to dictate the line of a road laid out less than forty years ago. Such cannot be the policy or implication of the statute. The widened road became a new road. Plaintiff’s fence did not exist on this road before 1846, because that was the beginning of this road’s existence. Prior to that time the fence was upon another road,— a road of other dimensions. It is to be presumed that, when the road was widened in 1846, the plaintiff received damages for so much of his land as was taken, including compensation for the expense which a removal of his fence -would impose on him. Suppose the fence had been maintained for a full forty years prior to the proceedings of 1846. Would that fact have prevented the widening? Or, suppose the forty years had expired in a week after the latter proceedings. Would the public right be lost if the fence were allowed to continue for a week? The principle would be the same whether the time be a week or many years.

But the new road or new part of it has never been opened, it is argued. The statutory requirement about opening a road, from the nature of things, would not literally apply to a case like this,— would have an application different from what it has where an entirely new road is to be constructed. There was no need of any opening more than to use the general road. There was no occasion for making the traveled path wider than it was. Using any part of the three rods was in effect using the four rods. Opening a part opened all — using a part was using all. The principal road was already opened,— the incident went with it. The public took the plaintiff’s land — paid for it — and the moment the traveler passed over the usual traveled track after-wards, the new road, all of the road, became dedicated to the public use. But the fences were not removed within the six years, it is replied. The town neither builds nor maintains fences. The owner should have removed them. The officers of the town attempt to remove them to prevent a forty years’ user, and are sued for it in this action. The case relied on by the plaintiff, State v. Cornville, 43 Maine, 427, does not aid his argument. In that case the addition was in length, and not in width of road — was an extension of new road. The case of Baker v. Runnels, 3 Fair. 235, is much more like the case at bar, and strongly opposes the plaintiff’s propositions.

Exceptions overruled.

Danforth, Virgin, Libbey, Foster and Haskell, JJ., concurred.