Warren v. Bunnell , 11 Vt. 600 ( 1839 )

The opinion of the court was delivered by

Collamer, J.

The selectmen are authorized to lay out pent roads, or private ways, as they are called in the statute, and the question now raised is, must such roads be, by them, opened in the same manner as highways. The opening of a road, under our statute, is not the mere taking down obstructions to travel. It has a legal and technical meaning. When a road is laid out and a survey thereof recorded, every thing necessary to the making thereof may be done, but it can be devoted to actual use only in a particular manner. The stat. ute provides, (vol. l,p. 44-3,) “ that whenever the select- “ men of any town shall open any road, heretofore or here- “ after laid out, they shall cause a certificate thereof, signed “by them, or a majority of them, to be forthwith recorded “ in the town clerk’s office in such town, and the day on “ which such certificate is recorded shall be taken and deem- “ ed to be the time of opening such road.”

Our statute gives to the owners of land over which a road is laid, damages, only when the road is opened in the manner above described. Patchen v. Morrison, 3 Vt. R. 590. No one has the right to use the road until so opened. The question now is, is the proprietor of land over which a pent road is laid and used, entitled to the damages thereby occasioned him ? If so, the road must be opened in the way provided by law, as in no other way can he obtain his damages.

That such land owner is entitled to his damages appears reasonable and legal from these considerations. This is not a private way, from necessity, arising from any grant made by the plaintiff himself. The road, when opened, may be used by all. Such a road may be as injurious to the land owner as an open highway, for, not unirequently, when roads are laid over low intervals, subject, to be flowed, they are made pent roads, though important public, and even stage roads. But what we consider conclusive on the subj ect, is, the words of the statute, “ that the selectmen shall have power” — “to lay out new highways or alter old ones, as they shall judge proper, and also private roads, when it shall be found necessary, so that no damage be done to any person or persons through whose lands such road shall be laid without due recompense,” &c. Hero the two species of roads are put reasonably on the same footing, and, of course, it follows that no person had a right to use this road until legally opened. The statute of 1813 is no new grant of power on this subject. It only modifies or explains the former law, as to gates and their alteration.

Judgment reversed.