Colden v. Thurbur

delivered the opinion of the court.-.—

The question- is, whether the- locus in- quo was a public highway,- at the time of the alleged trespass. The proceedings of the commissioners-of highways, in the year 1784, in relation to this road-, were not entered on the town record,, until the year 1790,. nor does it.appear by. *402what authority the record was then made; This, per-aaps, ought not to be considered a record of a road made ■conformable to all the directions of the then statute. ~ It appears, however, that, in fact, this road had been used a£"a public highway for about twelve years, which ispri-ma facie evidence that it was opened by authority, and to be deemed a public highway within the cases contemplated in the first section of the act of 1801,'for regula-ing highways. This section authorizes the commissioners, in their respective towns, to cause such of the roads as are not already described and recorded, to be ascertained, described, and entered of record. This authority necessarily implies, and presupposes an omission of some of the x’equisites to the establishment of a public highway. The roads referred to must be such as were in use, as public highways, at the time of the passing of the act. And the 'one now in question falls within that description. The commissioners, in 1805, had, therefore, authority to ascertain, describe, and enter on record this road; and this having been done, before the alleged trespass, the locus in quo was duly constituted a public highway, which affords,a complete justification for the defendant.(a)

Judgment for the. defendant.