Way v. Asa Fellows

Decision Date02 May 1917
CourtVermont Supreme Court

October Term, 1915.

APPEAL IN CHANCERY. Heard on bill, answer, report of special master and exceptions of both parties thereto at the June Term 1915, Caledonia County, Miles, Chancellor. Decree, dismissing the bill with costs. Plaintiffs appealed. The opinion states the case.

Decree reversed and cause remanded with direction that a decree be entered for the orators in accordance with the views herein expressed.

Simonds Searles & Graves for the plaintiffs.

Porter, Witters & Harvey for the defendant.



The orators and the defendant live on adjoining lots on the west side of the highway, and are the owners of meadow fields between which, previous to 1878, the highway extended northerly from their dwellings to the village of West Danville. In the year named the selectmen laid out and opened for public travel a new road, lying west of the old road, and extending from a point just north of the orators' house which is the most northerly of the two dwellings, to a point in the old highway near West Danville, and discontinued the corresponding section of the old road. This northern terminus was about 50 rods northeast of the most northerly extension of the orators' land, and a much greater distance beyond the land of the defendant. The meadows above referred to are on the southerly end of the discontinued road; the defendant's meadow cornering on the highway just south of the point of divergence, and the orators' meadow extending further north than that of the defendant. The remainder of the orators' farm bordering on the discontinued road is pasture land, and all the land lying east of this pasture belongs to other parties.

The orators claim the full width of the old road north of the defendant's meadow, and to the center of the road between the meadows, and seek to restrain the defendants from using the road. The defendant denies that the orators have title to any part of this road, and claims that the public have acquired a prescriptive right to use it as a public highway. The facts appear from the report of a special master.

The deeds are not before us, but the report states in terms that between the meadows the dividing line was the center of the old road; and here the orators claim nothing beyond this. It also appears from the report that the record title to the orators' pasture extended to the old road. The claim of the orators to own beyond the center rests upon these facts. Previous to 1879, the pasture was separated from the road by a fence. About that time the owner of the pasture erected gates across the road at each end of the pasture, and removed the fence. There was at this time a fence on the other side of the road, which was the dividing line between the road and the lands adjoining it on the east; and this fence has since been maintained, and the occupancy under the orators' title extended to it, in pursuance of an agreement between the owner of the pasture and one of the owners opposite, and a tacit understanding with another owner, that it should be the line between the pasture and the lands opposite. It is not necessary to consider whether these findings should be construed as extending orators' title by deed to the center of the old road, or only to the fence on the pasture side of the road; nor to consider, on the other hand, whether they are sufficient to support an inference of title to the land within the limits of this portion of the old road by prescription. The findings as to possession are sufficient to support this action against a stranger to the title. Rice v. Chase, 74 Vt. 362, 52 A. 967; Stratton v. Lyons, 53 Vt. 641.

The report shows the use of the old road by the public from the time of its discontinuance to the bringing of the bill, the purpose and use of the gates mentioned above, the placing of certain obstructions in the road at other points and at different times, and the understanding and claims of those who travelled the road. It is not necessary to consider these matters, for they are rendered immaterial by a further finding. The report states that since the building of the new road the town has not repaired nor in any way recognized the old road. This finding is fatal to the defendant's claim that the discontinued road had subsequently become a highway by prescription. While public easements can doubtless be acquired in other ways than by statutory laying-out, it is certain that people cannot by going where they will establish highways at will. Neither dedication nor fifteen years' adverse user, standing alone, will create a public highway. Bacon v. Boston & Maine R. R., 83 Vt. 421 76 A. 128. In the absence of a statute affecting the question, it is...

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