Franklin,

1818.

USBÍ of a road, by travel, will not make it a public highway.

THIS case was tried before Judge Doolittle, June term, ISIS', on the general issue.

Verdict for plaintiff.

Exceptions as follows :

’í’he plaintiff offered to prove, by witnesses, that the road in question, had been usedfor a public highway for twelve or thirteen years previous to the time of trial.

To this evidence the defendant objected, contending that plaintiff ought to shew cither a record of the laying out and surveying of the road, or an use of the same, as a public highway, for fifteen years previous to the damage complained of.

Objection over-ruled, and witness testified, the road had been used for a .public highway, for twelve or thirteen yéars:

The Judge charged the Jury, that if they found the road in question, had been used as a public highway, for twelve or thirteen years, they ought to find the same to be a public highway within the perview of the Statute.

On this bill of exceptions the Court determined that a mere use of a road, by common travel, would not make it a public highway ; but, that some act of the town, by their officers recognizing the road to be a public highway, was necessary, as by describing the road in the rate-bill and warrant issued to the highway surveyors.