Knight v. Heaton

If land within the surveyed limits of a public highway be inclosed by an individual and occupied by him constantly for more than twenty years, under a claim of right, he will acquire a prescriptive right to the land so occupied, as against the public, and can maintain trespass against the selectmen of the town, who remove his fence to the original line of the highway.

Trespass guare clausum, fregit. The case was referred under a rule from the county court, and the referee reported the facts as follows. The selectmen of Thetford, in 1819, laid out and surveyed a public highway in Thetford, three rods in width, which was opened for public travel in 1820, and has ever since continued to be an open public highway ; but the road was so fenced, as to leave less than three rods in width between the fences, and so continued most of the time until 1845, when the selectmen of Thetford directed the plaintiff, in writing, to remove his fence to the easterly line of the highway, as originally surveyed, and the plaintiff promised to do so, but did not. In 1846 the selectmen gave verbal notice to the plaintiff to remove his fence and he again agreed, that he would do so, but did not. In the spring of 1847 the plaintiff was again notified by the selectmen to remove the fence, and he refused to do so. And the defendant, who was one of the selectmen, then removed the fence to the easterly line of the highway, — which was the trespass complained of in the declaration. The fence, for more than twenty years previous to its removal by the defendant, had remained in the place from which it was removed, which was within the limits of the highway, and the defendant had continued in possession of the land to the fence during all that time. The original survey of the highway was duly recorded, and the record preserved ; and the original limits of the highway could be and were accurately ascertained. Upon these facts the referee submitted to the court the question, whether, in law, the plaintiff was entitled to recover, and assessed the plaintiff’s damages at forty dollars. The county court, June Term, 1849, — Redfield, J., presiding, rendered judgment for the plaintiff upon the report. Exceptions by defendant. There was no laying out, making, or altering this highway, by the defendant, as contemplated by Rev. St. c. 20, § 6; nor was there any laying out and opening of the highway wider than it was originally laid out in 1819, as provided by Rev. St. c. 20, § 7. Sec. 8 provides, that “ where the survey of any highway previously laid out shall not have been properly recorded, or the record preserved, or where for any reason the terminations and boundaries of such highway cannot be accurately ascertained, the selectmen may resurvey such highway,” &c. How, then, could the selectmen remove the plaintiff’s fence out of the highway. They could not do it under sec. 7, because the highway had been laid out as wide, as the present law or public convenience requires. It could not be done under sec. 8, because the survey was duly recorded and preserved, and the termination and boundaries could be accurately ascertained from survey. The Rev. St. c. 21, § 35, amended by thq statute of November 15, 1847, [Acts of 1847, p. 21,] provides, “ that if any person shall enclose any part of the highway, or erect any fence” &c., “ in such highway, or shall continue any such enclosure, fence” &c., “ the selectmen may, by their order, require such person to remove such fence ” &e., “ within such convenient time as they shall think reasonable.” The case finds, that the selectmen did make the proper order; and they were fully authorized, by this statute, to remove the fence. The plaintiff cannot hold the land by possession, it having been dedicated to the public use. SI. St. 289, see. 6. Rev. St. c. 58, 1-4. Slate v. Trash, 6 Vt. 355. Univ. of Vt. v. Reynolds, 3 Vt. 543. The plaintiff’s possession was not adverse to the public ; he admitted, that his fence was in the highway, and promised to remove it. The plaintiff contends, that the defendant had no authority, under the Rev. St. chap. 21, sec. 35, to remove the fence, although it stood within the surveyed limits of the highway, for the reason, that the fence had remained there for more than twenty years. In order to give the town a right to the land enclosed, they must have caused the damages to be appraised and paid to the plaintiff, as for a new laying out of a highway. Rev. St. c. 20, § S.