Wolcott v. Whitcomb ( 1867 )

The opinion of the court was delivered by

Kellogg, J.

The plaintiff had a right to erect gates and bars on his own land unless this right was taken away by reason of the laying -out and opening of a highway as a pent road over it. All pent roads are public highways, though called in the early statutes private iroads,” — that is to say, they may fee used by all, — but they are not open highways. A road could not be a pent road if it was not shut up or closed at its terminal points ; and the term pent (“ penned, .shut up, confined, or closed,”) is employed to distinguish such a road from an open road. To say that a pent 'road is an open road would be confounding the signification of the terms. The road in question was laid out and established “ as a pent road,” and it is either such a road, or no road at all. The plaintiff’s right to erect gates and bars on the road is subject only to the uses for which the road was laid, and the regulations prescribed by the proper authority in respect to the number and location of such gates and bars. There were no such regulations in respeet to this road, and the plaintiff’s right was not lessened or restricted by the fact that there were none; and he had a right to protect his field and crops by suitable and proper •gates or bars, if such gates or bars did not interfere with the reasonable use of the road as a pent road. Such a use of the road was the extent of the interest which the public had in it. Slade’s Comp. Stat., p. 427, § 1,—p. 440, § 3; Comp. Stat., p. 161, et seq., §§ 3, 5; Gen. Stat., p. 173, et seq., §§ 3—7, 15; Warren v. Bunnell, 11 Vt. 600; Whitingham v. Bowen et al., 22 Vt. 317; Loveland v. Town of Berlin, 27 Vt. 713.

The case of Henby v. The Trustees of Ripley Township, 10 Indiana Rep. 45, relied on by the defendant’s counsel, which decides that landholders cannot 'erect gates upon the township highways as contemplated b.y the statutes of that state, unless the township trustees authorize it by providing the proper regulations, has no application to this case, because, under the laws of that state, a township highway is not a pent road, but is an open public highway, extending, however, in but one township, and laid out by the trustees of the township. See 1 Rev. Stat. of Indiana (1852), p. 313, § 27, et seq. And although, under the provisions of the statute of Indiana, gates may be erected on township highways under regulations prescribed by the trustees, (1 Ib., p. 314, § 35), this is but a mode .of converting an open road into a pent road, and not a process for making a pent road an open road.

Judgment of the county court in favor of the plaintiff affirmed.