
    Estes vs. The inhabitants of Trox.
    Ten years user of a way by the inhabitants of a town, is not sufficient to oblige them to keep it in repair.
    This was an action for damages to the plaintiffs horse, thr defective causeway on a road in Troy ; and it came before the court upon a motion to set aside a nonsuit directed by the Chief Justice, before whom the cause was tried. The evidence of the existence of the road is stated below in the opinion of the court.
    
      II. W. Fuller argued in support of the action,
    upon the ground that the town had adopted the road as a public way, by opening it, and assigning it to their surveyors from year to year to be kept in repair ; and that this was sufficient to estop the inhabitants from denying that it was a public highway. If not, they might always evade the statute, by making the road a few feet distant from its original location ; and defraud of his remedy the unfortunate and unsuspecting traveller, thus decoyed into a by-path.
    
      Allen for the defendants.
   Mellen C. J.

The principal question in this case, and the only one which we need decide, is whether the alleged injury was sustained on any highway or town way which the defendants were liable to repair. If not, this action is not maintainable. No legal way exists j no record of any appears. The only proof a way de facto is that it 1812 a road was opened in the course mentioned, and has been used1 ever since as a travelled road; and been annually repaired by the surveyors of the town. But in 1822 this road was fenced across its two places; and in 1824 a gate was erected across it, which was continued for one or two months, After a road or way has been opened, continued and travelled for twenty years, without interruption or in-cumbrances, it may be considered and treated as a public way; for such a user for that term takes away the right of entry of the owners of the laud, and gives the town a right to enter upon and repair it. , But in the case before us, the user has so continued only ten years. The owners have exercised dominion over the opened road, and shut it up. This case is a stronger one for the defendants than that of Todd v. Rome 2. Greenl. 35, or Rowell v. Montville 4. Greenl, 270. The action cannot be maintained, and the nonsuit is confirmed.

Judgment for defendants.  