Dickinson v. Town of Rockingham

The opinion of the court was delivered by

Under the instructions of the county court, the jury have found that- when Willard, one of the selectmen of the defendant town, directed the ladder to be placed across the main road, near the junction of the hill road with the main road, he intended thereby, not only to obstruct the main road so that travelers would not pass over that portion of it which was out of repair, but, also, to turn the travel over the hill road ; and that he did this agreeably to an understanding which existed between him and the other selectmen, that each one should take charge of the matters pertaining to the duties of their office in his part of the town, and that the others would concur in whatever he did in that behalf. The court treated the hill road as a private way for the sole use of three or four families that lived upon it, up to the time Willard directed the ladder to be placed across the main road, but told the jury, if they found he intended to turn the travel! over the hill road while the main road should be out of repair, when he directed the ladder placed across the main road, and he directed the ladder placed there agreeably to a previous understanding with the other selectmen, this would constitute a temporary adoption of the hill road as a substitute for the lower road while not in a condition to be used. The defendant complains of this instruction, because he claims that it did not restrain the jury from finding Willard’s intention to turn the travel over the hill road, from the mere act of placing the ladder across the lower road ; and because it assumes that such a previous understanding between Willard and his associates, was *113sufficient to enable Willard, without the knowledge of his associates, to create a public highway where one had not before existed ; and because the instructions rendered it unnecessary for Willard’s associates to concur in his intention, as well as in his act. The ladder was placed across the main road just easterly of the westerly junction of the two roads. The hill road ran nearly parallel with the main road, and there was no fence between them. The ladder, from its position in regard to the two roads, would naturally and inevitably, not only obstruct the further passage of the traveler on the main road, but also turn him over the hill road. To the traveler desirous of passing eastward, it would speak as distinctly in the one direction as the other ; and of thisj Mr. Willard, as a prudent man, must have been aware when he directed the ladder placed there. We know of no reason why a town officer should be exempt from the rule which so extensively obtains in the law, that a man is presumed to intend the natural consequences of his acts. Under this rule, Willard’s act, in the absence of any warning to the traveler to the contrary, tended to show that he intended to turn the travel over the hill road, while the main road was out of repair. The traveler’s condition would be a very unfortunate, not to say hard, one, if, upon finding the main road obstructed, with another road running nearly parallel with it, leading from it just before reaching the obstruction, he must go out on a search to. find the town officer placing the obstruction there, and inquire whether he intended thereby to turn him into a plain, open way, leading round the obstructed portion, before he could use it for a temporary highway which the town was bound to keep in repair. A town cannot be said to have fully discharged its duty to the traveler, when one of its main highways is washed away to an extent that it will take days or weeks to repair it, by simply placing an obstruction at the two ends of the washout, without providing a by-way to pass round it. The traveler would naturally expect to find such a by-way round such a spot, and seeing a by-way there, opened and in use, would have a right to conclude it was prepared by the town for his use. We think the court were right in allowing the jury to find, from his act in placing the ladder across the main *114road at the place he did, with the hill road leading out of it near to and before reaching the ladder, that Willard intended to turn the travel over the hill roa,d.

Nor do we think it necessary for all the selectmen to have been present, and joined in directing the placing of the ladder across the main road, and in intending thereby to turn the travel over the hill road, in order to make the hill road a highway for the sufficiency of which the town would be liable so long as the main road continued fenced up. Whenever a portion of a highway is swept away by a freshet, or rendered unsafe for travel from any cause,. and that fact comes to the knowledge of one of the selectmen of the town, the statute imposes the duty upon him, at once to go about repairing it, and immediately to use effective means to prevent the traveler from passing over the unsafe portion of the highway, and if it is on one. of the principal highways, and the making of the repairs must, of necessity, consume considerable time, it is his duty to provide a way round the founderous portion of the main highway, when it can be done without too great expense. It will not do for him to wait till he can call his associates together, and till they can all solemnly deliberate and determine what must be done. The statute imposes the duty of immediate action. It is imperative. The manner of performing the duty may require the exercise of judgment. It is not discretionary with him whether he will act or not. We think, without any previous arrangement between the selectmen, the town would have been bound by the acts of Willard alone. If Willard had not ordered the ladder placed across the main road, but had known of the washout, of the obstruction of the main road with the ladder, and that the travel was turned over the hill road, the town would have been liable for any injury happening to the traveler on the hill road, through its insufficiency. This was decided in Batty v. Duxbury, 24 Vt. 155, and has been followed and adopted in two decisions not yet reported: Staples & wife v. Berlin, in Washington county, and Richmond & wife v. Woodstock, in Windsor county. In t£ds case the court did not go the full length of this doctrine, but only held the town liable for the insufficiency of a by-way round the obstructed highway, opened by one of its *115selectmen acting under a general authority previously conferred by the other selectmen.

The court, against the defendant’s request and exception, charged the jury that,-if the hill road was temporarily adopted as a way round the washout, while the main road was disabled, the rights of the plaintiff would be the same as against the town, if she used it for the purpose of going to or from Wiley’s, as though she used it as a way around the washout; — that there was no distinction between the two kinds of travel. In this, a majority of the court think there was. no error ; that when the hill road thus became a substitute for a portion of the main road, it became such for all travelers who had occasion to use it, whether to go to and from the Wiley house, or to pass around the washout. It became an open public way, which the town were in duty bound to maintain' and keep in good and sufficient repair for such use as the town was temporarily putting it to, and this duty the town, by the force of the statute, were bound to discharge for the benefit of all persons who had occasion to use it for the purposes of travel. It was in effect, for the time being, so far as the traveler was concerned, a removal of the main highway from its former location to the location of the hill road which passed the Wiley house; and as to the plaintiff, who was, at the time of the injury complained of, in the legitimate use of it as a traveler, the liability of the town was the same it would have been if the plaintiff had received the same injury, from the same cause, on the main highway in its original location. It may be, and probably is, true, that the town had not, as against the owners of the land through which the hill road passed, the same rights it had as against the owners of the lands through which the main highway passed. Whether it bad, or not, is not at all determinative of its liability to the traveler for its sufficiency. Neither is it necessary to decide whether the town would be liable to the owners of the hill road, as a private way, for any injury happening to them through its insufficiency, while in the use of it for their ordinary domestic purposes, unless the insufficiency was occasioned by the town’s using it as a substitute for the main highway. We regard the question of the town’s liability to the owners of the hill road as a. *116private way, as separate and distinct from the question at bar, and express no opinion upon what their rights might bo. We only decide that, under the facts found by the jury, the hill road, for the time being, became a part of the main highway, which the town was under a duty to keep in good and sufficient repair for all persons who were using it for the purpose of public travel, and that the plaintiff was, at the time of the injury, in such use of it, though only using it to go to and from the Wiley house.

Judgment affirmed.

dissenting. So far as the decision made in this case holds that the defendant town would be liable to a traveler who was using the highway for the purposes of through travel, and was necessarily turned on to the by-way in order to prosecute his journey beyond the obstruction, there is no disagreement among the members of the court; but where the decision goes beyond that, and holds the defendant liable to the plaintiff, who was not turned on to the by-way at all on account of the obstruction in the highway, but who would have used the by-way, just as she did, if the highway had been in good condition and unobstructed, there is some disagreement.

That the turning of the through travel on to the by-way did not establish a highway over it, is very clear. Young v. Wheelock, 18 Vt. 493. No one of the selectmen alone, nor all of them together, could lay out a road there, nor anywhere else, except on application to them as a board of road commissioners, by proper petition of the requisite number of freeholders, according to the statute. The town would not be liable to a through traveler because the by-way had become in fact a highway, but only because the authorities of the town had taken it for the use of such traveler, as a substitute for the highway while obstructed, and had induced them to take it and use it as such a substitute. In Batty v. Duxbury, 24 Vt. 155, it was held as settled law, that it was the duty of towns when their highways were obstructed, to see that the public have a proper by-way “to pass around the obstructions but the case did not hold that such a by-way would become a highway for those using it for other purpqses, and not *117for passing around the obstruction. In Staples v. Berlin, not reported, the plaintiff was using the by-way to pass around an obstruction ; so was the plaintiff in Richmond v. Woodstock, not yet reported. And in no case that has been cited or discovered, previous to this one, has it been held that by providing a by-way to enable travelers to pass around an obstruction, the town became liable to any one using the by-way for any other purpose. In this case, as it was left, the by-way was a private way to and from private houses. The town had borrowed it for the use of travelers who might have occasion to pass around the obstruction, but not for the use of any others. This left it a private way for the use of those going to and from the private houses, as much as it was before. It was not a public highway for those going to the private houses, and not along round the obstruction, any more than it was for the occupants of those houses in going from and returning to them. It would seem to be plain that these occupants would have no claim upon the town for any injury they might receive on account of the insufficiency of the by-way, for the injury would be occasioned by a defect in their own private way. And it seems to me to be nearly as clear, that a person going to, or returning from, the houses, would have no claim for such injury; for that injury would be occasioned by the use of what to him, for that use, was a private, and not a public, way. The plaintiff, as the case states, had been over the by-way to the Wiley house, and was returning from there when she was injured, and had no occasion to use the obstructed portion of the highway on either of these journeys. To her, the condition of the regular highway was of no importance, and the turning of through travel from it on to the by-way, had not, in any mariner, affected her. The by-way was not a highway in fact, nor had it been taken for her use as such; nor had anything been done, by, or in behalf of, the defendant, that in any way injure^ her, or led her where she received injury. If the travel which was turned on to the byway had made it more dangerous than it was before, and this had injured her, the case might merit different consideration; but nothing of this kind appears.

*118As the case stood, it seems to me that the plaintiff showed no liability on the part of the defendant. I am requested by Judge Royce to state that he concurs in this opinion.