Hayes v. Shackford

Richardson, C. J.

The question to be decided in this ease is, whether there was a highway duly laid out by the selectmen of Barrington, through the locus in quo, at the time the defendants' entered ? The statute of February 8, 1791, entitled an act for laying out roads,” does not, in express terms, require that the doings of .selectmen in laying out roads should be reduced to writing, or recorded. But we are of opinion, that their doings must be reduced to writing ; and the writing lodged with the town clerk, before a road can be considered as duly laid out. We ground this opinion upon the obvious utility and necessity of having the doings of the selectmen, in this instance, reduced to writing, and preserved, and upon what is believed to have been the constant usage and practice under this statute in all parts of the state. Was, then, the return, made by the selectmen in this case, in July, 1821, sufficient ? In our opinion it ivas not. It does not state how wide the road ivas to be ; and this seems to us to be a fatal objection. In cases of this kind, the property *12 ol individuals is taken and appropriated to the use of the pub* lie ; and it must; be important to the owners of the land to know, with a reasonable certainty, how far their properly is thus 'appropriated ; and it is not unimportant to 'those, whose duty it. is to keep roads in repair, to be able easily to ascertain the extent of the easement.

We are, however, of opinion, that the amended return of November 24, 1821, was sufficient. But that return cannot avail the defendants as an answer to this action, because not made until after the acts, of which the plaintiff complains, were done. It is clear, then, in this case, there must be A new trial granted.