
    TODD v. The INHABITANTS of ROME.
    A town is not liable in any form, for the deficiency of a road, unless, by regular legal proceedings, or by user and acquiescence for a sufficient term of time, they have acquired the right to enter upon the land, and make and repair the road.
    Such use and acquiescence for twenty years, and perhaps for a shorter period, may be considered sufficient to give the town a right, and subject them, to liability to repair, and to' its legal consequences.
    No certiorari lies to set aside the doings of a town respecting the location and acceptance of a town way. If they are not legal, they are merely void.
    
    This was an action on the statute, [Slat. 1821, ch. 118. sec. 17.] for an injury to the plaintiff’s horse, occasioned by a defect in a causeway on a supposed town road in Rome; and came before the Court upon a motion to set aside a nonsuit.
    The plaintiff, at the trial of the issue, proved from the town records of Rome, that at a toWn meeting on the 16 th day of Jan-
      
      •nary 1815, the inhabitants voted “to accept a piece of a “ road, beginning at a stake and stone north of Ivory BlasddVs a cut-down, and running southwesterly to Solomon Tracy's dwelling “ house in Rome; said road to be four rods wide, and to be on “ each side of said course.” He also proved, by one of the selectmen for the years 1814 and 1815, that he, with the other Selectmen, in the autumn of 1814, laid out a road from BlasdelVs to Richard Furhish's, in Rome, and made minutes thereof, which Were presented at the town meeting on the 16 th of January 1815, but he did not recollect whether those minutes were signed or tiot; — that the road as laid out by them passed the dwelling house of Solomon Tracy, junior, but the town accepted only the part extending from this latter house to BlasdelVs; — and that the witness, who was also town-clerk, in recording the acceptance of the road, omitted the addition of junior to the name of Tracy, by mistake. He also proved that the surveyor of highways, for the year 1815, caused the road from BlasdelVs to Solomon Tracy, junior's, to be cut out, built a small bridge, and made a causeway of logs, on the same road, on which causeway the plaintiff’s horse received the injury complained of; — that a surveyor of highways, living on the road between Furbish's and BlasdelVs, had been chosen by the town every year since the acceptance of said piece of road, and had expended thereon áiore or less of the highway taxes of the inhabitants living thereon; — but it did not appear that the assessors had made out any warrants to the surveyors of highways, nor any assignments of their limits. It was also proved, that in the years 1819 and 1820, the surveyor living on said road had the names of the men living on the same, with the amount of each man’s tax, given him by the assessors, and that he caused the same to be expended in labour on that road; but still had no warrant of assignment of his limits, under the hands of the assessors;— and that after the injury to the plaintiff’s horse, the surveyor living on the road repaired the causeway, at the expense of the town. It also appeared that due but ineffectual search had been made for the minutes or report of the selectmen who laid out said road, it being supposed to be lost.
    On the part of the defendants it was proved that there was a town road leading from BlasddVs to Solomon Tracy, senior's, 
      ■fyhich had been opened and used before the 16th of January 1815, the course of which is south 30 degrees west, and that the course of the road contended for by the plaintiff is south 80 degrees west; — that during the spring and summer three sets of bars have usually been kept up across the road between Furbush's and St. Tracy junior's, and one set between the latter place and Blasdell's; — that at Furbush's it terminates in a town road leading to New-Sharon, aiid is there closed by bars ; — that at Blasdell's it terminates in another town road leading to Mercer, where it is open ; — that the road on which the injury hap-' pehed is not fenced at the sides ; — that the line fence of one of the owners of the land crosses the road at one of the barred places; — that the Old road fro'm Blasdell's to Tracy's was fenced up in 1815 and that no labour had since been expended upon it; — and that the causeway is ten rods northerly of a course south 80 degrees west from Blasdell's to S. Tracy junior's, but yet is built in the travelled path. They also proved that the' person riding the plaintiff’s horse was notified that it ivas obstructed by bars, which, however, he removed.
    
      It further appeared that the defect in the causeway was Occasioned about sixteen days before, by a freshet, of which the surveyor living on the road had due notice; — and that it was repaired by a surveyor of highways in the slimmer of 1821.
    Upon this evidence, by advice of the Judge who presided at the trial, the plaintiff became nonsuit, subject to the opinion of the whole Court upon the general question whether, upon the facts stated, the action could be Sustained.
    
      Boutelle and Clark, for the plaintiff.
    The statute ivhich’ gives the action being remedial, is to be' liberally expounded, in favour of the party injured; imposing on town's the duty to repair all highways, in whatever manner established.
    1. The road in question was well located according to' the' statute;-for there was a laying out by the selectmen, and an acceptance by the town. The' location by the selectmen was sufficiently recorded, upon the paper laid before the town; which it was not necessary they should sign. But if the pro-' Ceedi'ngs of the town of its officers were not in all respects' formal, yet the record of the acceptance of the road by the town ought, to have at least the effect of an adjudication of the sessions that a way pi'ayed for is of public convenience; be^ hind which record, parties are not permitted to go, where there has been an acquiescence in the road as located. Ex parte Miller, 4 Mass. 565. Commonwealth v. Justices of Norfolk, 5-Mass. 435. Hardin’s Rep. 258.
    Nor is it competent for the towm to deny their own record. And here they have recorded a way established from BlasdelVs to Tracy’s.
    
    The original record made by the selectmen being lost, we‘ may presume that the record of the town contains only the general description of the way; and that the lost paper contained the particular courses. Makepeace v. Bancroft, 12 Mass* 469. If the existing record discovers any uncertainty in the description either of persons or courses, it is made certain by reference to the actual location. As to the course described as southwesterly, it must be taken to mean any course between south and west, which will lead to the terminus mentioned ; and the actual location shews which of the Tracys xvas intended.. The omission of junior from the name of one of them reduces the case to the common occurrence of a latent ambiguity, which may always be explained by matter oh extra. Peake’s Ev. 112. 10 Johns. 133.
    2. But if it is not a way of record, yet it is a way de jure, or defacto; and however .the town may have acquired the easement, they are bound, from the moment of acceptance, to maintain it, at least until it is as publicly abandoxxed. The modes in which such easexnent may be acquired are various, but the authorities all go to prove the correctness of this position. Mi-den v. Murdock, 13 Mass. 258.- 8 D. dr E. 608. 1 Carnpb. 260, 262. 8 East, 6. 11 East, 265. Phillips’ Evid. 126. Shawv. Crawford, 10 Johns. 236. Hathorn-e v. Haines, 1 Greenl. 245.-2 Str. 909. If the town, by any act of their own, as by erecting guide-boards, or by open assumption of the obligation of maintaining a way as a public road, induce the unwary traveller to pass over it to the injury of his limbs or property, it is most reasonable that the town should respond in damages; and that this liability should continue until the public are informed,. by some act of equal notoriety, that the obligation is no longer recognized by the town.
    The bars erected across the road are no evidence of any denial of this duty, because towns being authorized by the statute to permit such erections, they must be presumed to be kept up by leave of the town, rather than to have been nuisances, unless the contrary appear. And such license would be in itself sufficient evidence, against the town, of the existence of the road.
    
      Bond, for the defendants.
    1. Here is no legal way. It should not only have been laid out by the selectmen, but they should have made a report of their doings under their hands, to the town, and this report should have been recorded. Commonwealth v. Merrick, 2 Mass. 529. But here was no report, and so the subject was never legally before the town.
    Besides, the forms of law not having been observed in the location of the road, the town have acquired no right to enter on the land to make or repair it. Every person thus entering would be liable in trespass. And if the town have not the right to make repairs, they are not responsible for damages arising from defects in the road; for the right and the obligation are inseparable.
    2. If it were a way of record, yet the record is the only evidence ; and if this be regarded, the injury did not happen upon the way laid out, but on private property far distant from it. And this record is not to be contradicted by the parol evidence offered. Peake 112. Hunt v. Adams, 7 Mass. 518. King v. King, ib. 496. Townsend ¶. Weld, 8 Mass. 146. Stackpole v. Arnold, 11 Mass. 2.7. But if it were competent for the plaintiff to introduce the parol evidence offered at the trial, yet the case shears that the causeway on w'hich the injury happened is several rods north of the course contended for, and so not within any possible liability of the defendants.
    3. But if the injury happened upon a road regularly laid out, yet it was merely a private and not a public way; and such ways towns are not obliged to support. The only obligation on them is imposed by statute, and this speaks of highways and town ways only. Private ways are reparable by private 
      persons, and their liability for not repairing seems recognized by the same section on which this action is founded.
   Mellen C. J.

delivered the opinion of the Court as follows »

In this case a nonsuit was entered by consent of parties, and all the evidence has been reported; and we are to decide upon it in the same manner as though the whole had been presented upon a statement of facts.

In the argument several questions have been discussed which it is not necessary for us now to decide. The onty points demanding attention are — whether a town way was legally laid out and established at the time and in the place contended for by the plaintiff; — and if not, — whether a road or highway has been in fact opened and used in such a manner and for such a length of time as to render the town liable for the damages done to the plaintiff’s horse by means of the defect in the bridge situate on such alleged road or highway.

As to the first of these points, there seems to be no doubt upon the facts before us. In the case of the Commonwealth v. Merrick, 2 Mass. 529, it was decided that the doings of the selectmen relating to the laying out a town way must be recorded; otherwise the way is not legally established. In the present case that was not done. What those doings were is but imperfectly known; nor does it appear that they made and signed ány location of the way. The way then clearly was not a legal town way, ovprivate way; and cannot be considered as such, unless in an action or prosecution against such town. It is urged by the plaintiff’s counsel that the town cannot object to their own proceedings on account of their irregularity; and that as against them the location and acceptance of the way are to be considered legal and binding. To this it may be replied that any of the owners of the land through which the supposed way is laid could have maintained an action against the survey- or for opening and making it; — because such owner certainly might object to the, irregularity of the proceedings, even if the town could not. Plow then could the town be liable, in any form, for the deficiency of such supposed road, if they had no legal right to open and make it without the consent of such owner ? Their duly cannot be broader than their right. It is true if the owners of the lands over which the supposed i;oad has been laid, had assented to it, eyen though it was not located exactly in the course described in the return and acceptance pf it,'and the public had been permitted to use it according to its practical location, without molestation or objection, and such consent, acquiescence and user had been continued for twenty years, or perhaps for a shorter time; — these circumstances might essentially change the ground, and be considered sufficient to give the town a right to repair the way, and subject them to liability to repair, and to the legal consequences of neglecting their duty. But such is not the proof in the present instance.

It has, however, been urged that the way must be considered as a legal one, until it shall be declared void by some legal process; in the same manner as county roads which have been laid out are to be deemed, and all the proceedings relating to their location valid, however erroneous and imperfect they may be, until quashed on a writ of certiorari. The cases are in no wise parallel. No certiorari lies to set aside the doings respecting the location and acceptance of a town way. Hence if they are not legal, they are void, and not merely voidable.

As to the second point; — to prove that a way defacto existed as above mentioned, the plaintiff relies on the circumstance that the road was opened and made in the year 1815 by the survey- or of the town of Rome, — and that he had at different times expended the money of the town in repairing it, by permitting the persons living on the road to work out upon it the amount of their highway taxes, — and that this was done by the consent of the assessors, verbally given. But, opposed to this is the fact that ever since the year 1815 this supposed road has remained, in all parts of it, without any fence on either side, and several of the owners of the adjoining lands have extended their line fences across the road.; so that no persons could pass or repass without removing bars in three or four places, We consider this as clearly shewing a controling power, exercised by the owners of the lands, over all the supposed claims of the public, utterly inconsistent with the nature of a highway or town way defacto; and are satisfied that the nonsuit ought to be confirmed. Motion to set aside the nonsuit overruled—

And judgment for defendant,  