Tilton v. Pittsfield

Case, on the statute of highways, for damage happening to a traveller. Facts agreed. The alleged highway runs from a highway to a railroad depot. It was not laid out in the mode prescribed by statute, and has not been used twenty years for public travel. It was opened by the railroad company within twenty years, upon an agreement between the company and the town that the public should have the free use of it as a highway, and the company should keep it.in repair so long as the company used the depot, and that the town should discontinue so much of the highway at another place as the new way was a substitute for. This agreement was executed: the discontinued highway was enclosed, and the plaintiffs and the public in general had reason to believe, and did believe, that the new way was a highway provided for public use by the action of the town, and used it as such.

A way not laid out in a mode prescribed by statute, and not used twenty years as a highway, is not a highway. Gen. St., c. 68, s. 8; Rev. St., c. 63, s. 7. The town is not estopped, in this case, to deny that such a way is a highway. Haywood v. Charlestown, 34 N. H. 23; Northumberland v. A.' Sf S. L. Railroad, 35 N. H. 574; Smith v. Northumberland, 36 N. H. 38; Hall v. Manchester, 39 N. H. 296; Fames v. Northumberland, 44 N. H. 67; Stevens v. Nashua, 46 N. H. 192. In Gilbert v. Manchester, 55 N. IT. 298, the way had been used as a highway more than twenty years. When a way is a highway, the question may arise whether the town can divest itself of its duty of keeping it in repair. Watson v. Tripp, 11 R. I. 98.

Allen and Clark, JJ., did not sit.