
    Lyman Patchen vs. Mark Morrison.
    Bennington,
    
      February, 1831.
    When anew road is etabJisbed, any town through which it passes may immediately make it, and it then becomes the duty of the select-men to open it; and when opened, they must cause a certificate thereof to lie recorded in the town clerk’s office ; which recording is the proper evidence of the opening of the road, and until this is done, the owner of the land may lawfully keep it enclosed with a fence, and no one has a i ight to remove it.
    This was an action of trespass quare clausum fregit, wherein the plaintiff complained that the defendant, with force and arms, on the 2d day of December, 1828, broke and entered the plaintiff's close, situated in Bennington, and then and there broke down and destroyed the fence of the plaintiff, enclosing and surrounding said close. The defendant pleaded first, the general issue, and secondly, in justification,
    “ That before, and at the time of committing tHe trespass in the declaration mentioned, there was, and of right ought to have been, a certain common and public highway into, through, over, and along the said close in the said declaration mentioned, for people to go, return, pass and repass, on foot, and with horses and carriages, at all times of the year, at their free will and pleasure. And because the said fence in the said declaration mentioned before and at the time of committing the trespass in said declaration mentioned, had been wrongfully erected, and was there standing in and across the said public highway, and obstructing the same, so that, without breaking and pulling down, demolishing and destroying the said fence, the said Marie could not then pass, and repass, into, through, over and along said highway, as aforesaid, as he ought to have done, the said Mark, at the said time in the declaration mentioned, in order to remove said obstructions, pulled down and destroyed the fence in the declaration mentioned, and took and carried the same to a small and convenient distance, and there left the same for the use of the said Lyman, doing unnecessary damage to the said Lyman, on such occasion — which are the said supposed trespasses in the said declaration mentioned, and whereof the said Lymanbath complained against him. And this he is ready to verify,” &cc.
    The plaintiff in his replication traversed the existence of any snch highway leading through and over the land described in the declaration, as mentioned in the defendants plea ; on which issue was joined to the country.
    The defendant to support the issue on his part offered in evidence, the proceedings of the road commissioners, iu and for the county of Bennington, laying a road through the premises described in the plaintiff’s writ ; to which testimony the plaintiff objected, and the court admitted the same. The defendant further offered to show in evidence by parol testimony, that the selectmen of Bennington immediately after said road was laid by said road commissioners, paid the plaintiff the damages assessed by the said commissioners, for laying the road through the premises; that afterwards, the said select-men, with sundry other inhabitants of said town of Bennington worked', opened, and made said road ; that said road had remained open several weeks, and had been constantly travelled and used as a common highway, when the plaintiff, after the said road had been thus travelled and used, erected a fence across the said highway; and the defendant, being travelling along the said road upon his ordinary business, and finding the said fence across the said road, gently took the same away so far as was necessary to enable himself to pass along with his horse, which he was then riding; to which testimony the plaintiff objected, and the court rejected the same, it being admitted that .the select-men had lodged no certificate in the town clerk’s office of the opening of said road. The defendant then offered to show the same facts thus rejected,with a view to mitigate damages; but the plaintiff agreeing'to claim only actual damages, the court would not permit the evidence to go to the jury, for the purpose last mentioned, and, thereupon the jury réturncd a verdict for the plaintiff. The defendant excepted, &c. and the case was reserved for the opinion of this court.
   Williams, J.,

delivered the opinion of the Court. — The point which is presented in this case for consideration is one of considerable practical importance. When a road islaid through the lands of one of our citizens, it is necessary that he should be enabled to know when his dominion over the soil ceases, when he is no long-at liberty to keep it enclosed ; and on the other hand every individual in community should be able to ascertain when a road becomes a public highway, so that he has an undoubted right to travel thereon, and may call on the-town to remunerate him for J . . any damage lie may sustain in consequence'of the insufficiency or want of repair of such road ; and the towns should know when their liability to make good such damages first arises.

Whenever a public road is opened, the right of theowners of the land to keep.it enclosed ceases, and the right of individuals to the use of the road, and liability of the town commences. This opening should be by some act sufficiently open and notorious, to apprise the persons interested of their duties, rights, and liabilities } and the present case calls on us to decide what is the evidence of such opening. In order to do this it may be proper to examine briefly the several acts which have been passed on that subject, and the history of legislation on this particular branch of law.

‘ By the general statute of 1797, all roads within the towns were to be laid out by the select-men, or, on their neglect, by a committee'appointed by the county court; but there was no provision for laying out a road through more towns than one. Hence applications were repeatedly made to the legislature, when a road was wanted through several towns, and they usually by a special act appointed a committee for that purpose, and prescribed their duties in the act; but no provision was made, either by the general or special acts, for opening the roads. The consequence was, that when the towns or the select-men were adverse or unfriendly to the road laid out by the committee from the legislature,they neglected either to make or open the road, and thus rendered nugatory the proceedings of the committee. In 1806, an act was passed making it (he duty of the select-men to open a road laid by a committee appointed by the county court, or by the legislature, within one year, and subjected them to a penalty of five dollars a month for’neglect. This act-was found to be insufficient, and in 1818, another act was passed still continuing this duty upon the select-men, and, in case of their neglect to perform the-same, subjected the inhabitants of the town to a penalty of thirty dollars a month for each month the select-men-should so neglect. In 1821 the towns were made liable to an indictment for not making and opening a road laid out by a committee, and, on conviction, subjected to a fine, equal to the whole expense of making the road, to be laid out under the direction of a committee appointed by the 'court where the conviction was had. In 1825, 4gthat part of the law which imposed the fine of thirty dollars on inhabitánts of the town was repealed.

It will be seen from the history of the legislation on this subject, that after the act passed in 1806, it was the duty of the selectmen to open all public roads, and that it occasioned repeated acts of the legislature to enforce the performance of this duty. It seems from another act which was passed, and it is within my recollection that such was the case, that disputes and doubts had arisen as to what was opening a road, and what was the proper evidence thereofto prevent these disputes and doubts, an act was passed in 1820, requiring the select-men, when they opened any road which had been, or which should be, laid,to cause a certificate thereof, signed by'them,or á major part of them,to be forthwith recorded in the town clerk’s office, and declaring that the day on which such certificate was recorded should be taken and deemed to be the day of opening such road. This act continued in force until the session of the legislature last fall, (1830,) when upon a digest' and revision of.all the laws upon the subject of roads, a similar provision was made as to opening roads and recording the certificate thereof, as was made by the act of 1820. The Court consider'that the recordingof this certificate is the proper evidence of opening a road. It is an act simple, notorious, and well calculated to apprize all of their rights and duties. When this is done, all persons are to take notice of it as the opening of a public road ; those duties, rights and liabilities, which arise from the opening of a public road,then commence: and until this is done, the owner of the soil is not under obligation to remove his fences, nor can individuals intrude thereon as on a highway opened for public use, nor are the towns liable for the insufficiency thereof.

The powers of imagination have been called forth to describe the inconveniences which the traveller might be subject to from this view of the law ; but I apprehend these inconveniences are merely ideal, and have no existence except in the imagination. On the other hand, a different construction of the law would subject both the owner of the soil and the towns to far greater inconveniences and trouble than could possibly happen to the travel-ler from the view we have taken.' These, however, are not considerations which can have much weight with a court whose duty it is to declare, and not make, the law.

It has been urged that the road, which is the subject of controversy in this action, was laid out by road commissioners under the act passed in 1827, and that the act of 1820 is not applicable to laid out by road commissioners. An examination of that ,- . , act, I think, will shew that it required the provision of the acr of 1820 to complete the system contemplated in relation to roads It: ^ not rePeal that act, but would have been imperfect without it. And it is some argument in favor of this, that when the laws in relation to roads, &c., were digested and revised in ] 830, the provisions of the acts of 1820 and 1827 were both preserved.

The law of 1827 gave to the road commissioners all the power which had before been exercised by the committees appointed by the supreme or county courts, and these were the same which had formerly been exercised by committees appointed by the legislature. By the 4th section, whenever .the commissioners laid out a road, they tyere directéd “ to make order of the time within which such road shall be made and opened”. Their decision,both as to'laying, making and opening the road, and as to the damages, are final and conclusive. In their order, two things are contemplated, viz. that the road shall be made, and that it shall be opened ; and it is in the nature of an adjudication by them, imposing a duty upon the towns or their agents to perform the acts required of them, by the time limited. This order, however, neither makes nor opens the road, but requires this to be done by the towns, or the select-men, in the same manner that it was to be done before, if the road had been laid by a committee appointed by the supreme or county court, and established by such court. The order does no more than to determine that a road shall he made and opened in the place directed. For the purpose of making the road, the select-men, or.agents appointed by the town for ' that purpose, are authorized to commence work immediately. They may entpr upon the land and do all the work requisite to make the road, doing no unnecessary damage, and doing nothing more than is necessary for building and constructing the bridges and the road. The owndr may still keep it enclosed with his other possessions, and make usé of it for any purpose not inconsistent with the exer.cise of the right of the town before mentioned. When this road is made, so as to be sufficient for public travel, it is thén the duty of the select-men to open the same in the manner pointed out by the act of 1820. Whenthis is done, a public road is opened, which the owner of the soil, the traveller and the towns, must regard as such.

It has been objected to-this, that the select-men may refuse to open the road, and thus deprive the public of the benefit of the adjudication by tho commissioners. If this be so, and if there is such a defect in the law, it is not for the court to supply the defect. In my mind it is altogether repugnant to every principle which ought to govern courts of justice, to supply an evident omission in a pub-lie law by judicial legislation under the pretence of construction. But it is believed the provisions of the law are sufficient and ample. The commissioners can compel the towns to make the road : they can levy and collect of the town a sum sufficient for that purpose, and cause the same to be expended in making the road under the direction of a committee appointed by them. When the road is made with the money collected of the town, it is not to be expected that the select-men will neglect or refuse to open the same. But if they should so neglect, we think it would be such a wanton disregard of their duty as would subject them to an indictment at'common law for their neglect.

Blackmer, for plaintiff.

hhem & Smith, for the defendant.

The conclusion to which we arrive is this, that when the commissioners establish a road, the towns may immediately make it ; that it is the duty of the select-men to open the road when they think proper ; but when they do open it, they must cause a certificate thereof to be recorded in the town clerk’s office; that until the road is opened, the owner of the land may lawfully keep it enclosed with a fence, and that no one can wantonly throw it down. The plaintiff, therefore, had a right to have his fence around the land on which this road was laid, and the defendant was not justified in throwing it down.

The judgement of the county courtis therefore affirmed.  