Commonwealth v. Belding

Dewey, J.

1. The first question here presented is not whether a town way may be established by dedication; and the case requires no opinion upon that point. But we are necessarily to decide upon another point of some practical importance, and upon which it is supposed by the counsel for the defendant, that this court has heretofore expressed an opinion. That point is, whether the proper laying out of a town road may be presumed from a long user and occasional repairs, with other circumstances, tending to show that the road was originally laid out as a town way, in distinction from a public highway or county road. The charge of the presiding judge was very full to the point, that in the absence of any proof as to the actual laying out of the road, it was to be deemed a public highway ; but he instructed the jury that they were authorized to find the way in question to be a town way, if the evidence was strong enough to overcome this presumption, and satisfy them that it was originally laid out as a town way.

The cases relied upon by the counsel for the defendant, as-bearing upon this question, are those of Commonwealth v. Newbury, 2 Pick. 57, and Commonwealth v. Low, 3 Pick. 413. The first of these cases is not in conflict with this ruling ; it being held only that a long user of a way by the inhabitants of the town where it is situate, and also by the inhabitants of the adjacent towns, is not sufficient to establish it as a town way, and that such evidence would tend to show it to be a public highway. But the case of Commonwealth v. Low is supposed to bear more strongly upon the point now raised. It is stated in the opinion pronounced in hat case, that the court “ do not perceive how the record of ihe establishment of such town way as is contemplated by the statute can be presumed from a user of any length of time. If it be used exclusively by the inhabitants of the town, the presumption will be of a grant of a way to the town, which will be strictly a private way, and will not support this indictment. If it be used by the inhabitants of the town in common with other citizens of the commonwealth, it will raise a presumption that the way is a public highway.” The doctrine here advanced would seem to be, that user of a way, by the inhabitants of the town in which it is situate, and of the adjacent towns, might raise a presumption of a public highway ; but that the like effect of a presumption of a town way, if used exclusively by the town, would not exist. The reason assigned for this distinction seems to be, that in the latter case the way established by the user is a private right of way attached to the inhabitants, as such, exclusively, and not, like a town way, open really to the use of all who have occasion to travel thereon.- It may be worthy of consideration whether this distinction is sound, and whether there is really any more difficulty, upon the proper evidence, that is evidence showing the original location to have been a town way, to presume a town way, than upon other proper evidence to presume a county or public highway. It may require much more evidence, and evidence of a different character ; but with the proper evidence it would seem reasonable that a town way might be shown, as well as a public highway, without, in all cases, producing a record of its establishment as a town way. In the case of Stedman v. Inhabitants of Southbridge, 17 Pick. 162, it was said by the court, that “ as a town way may have a lawful origin, it would be difficult to say that no possible combination of circumstances would raise a presumption of a regular laying out.” That case, though it did not decide the point, seems to sanction the doctrine that a town way, under some circumstances, may be proved by prescription, or by the presumption arising from user. Upon a full consideration of this question, as now presented, the court are of opinion that the instructions in this case were coirect, as to finding the road to be a town way.

2. The next objection taken to the ruling is as to the nuisance proved. The defendant introduced evidence tending to show that, at some remote period, a similar ditch had existed in the road, and was useful for reclaiming certain meadow land, which ditch, at a later period, had been filled up; and he coni )nded that if such were the facts, he had a right to open the drain anew. As to this, the ruling of the court was, that if the road had been used, as such, without the incumbrance, more than forty years, then the right to reopen the drain had been lost. This ruling was correct, and no ground exists for this objection.

3. The further instructions as to the question of abandonment of the old road, and the effect of opening a new way, and the using of the same until a bridge in such new way was carried away, were also proper.

Exceptions overruled.