Bigelow v. Inhabitants of Weston

20 Mass. 267

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1825
• Status: Published

Opinion

Per Curiam.

By the statute, towns are bound to keep in repair and amend highways, &c., so that they maybe safe and convenient for travellers, and are liable for an injury to any person occasioned through any defect or want of necessary repair and amendment. It is said that want of repair can apply only to some defect in the road, such as is caused by travelling, and not to an obstruction ; but it is difficult to make the distinction. Trees may fall across a road without the agency of any individual. It should seem that the town, upon proper notice, is as much bound to remove them as to repair any defect.² The exceptions therefore are not well taken.

Judgment affirmed.

2 By the Revised Statutes, any person who is injured in his person or property by reason of any defect or want of repair, which has existed for twenty-four hours, in any highway, town-way, causeway, or bridge, may recover the amount of damage sustained thereby; if the person or body liable had reasonable notice of the defect or want of repair, the party injured may recover double damages. Revised Stat. c. 25, § 22. A town becomes responsible for an injury occasioned by a defect in a highway, from the time when the way is opened for public travel. Bliss v. Deerfield, 13 Pick. 102.

A way is sufficiently shown to be a highway, by proof that it has been known and used as a highway for forty years, and during that time has been repaired by the town in which it is situated. Reed v. Northfield, 13 Pick. 94. See Canday v. Lambert, 2 Root, 173. Ten years user of a way by the inhabitants of a town, is not sufficient to oblige them to keep it in repair. Estes v. Troy, 5 Greenl 368. But it seems a user of twenty years, and perhaps a shorter period, would impose such obligation Todd v. Rome, 2 Greenl 55. See Hinckley v. Hastings, 2 Pick. (2d ed.) 164, notes; 3 Chitty’s Crim. Law, (3d Amer. ed.) 566, n. (A.)

What is reasonable notice to a town, of the existence of a nuisance in the highway, is a question of law. Springer v. Bowdoinham, 7 Greenl 442. Notice to a town, of a defect in a highway, may be presumed from the notoriety of the defect, and its continuance ior such a length of time, that the proper officers of the town, with due vigilance and care, might have known of it. Reed v. Northfield, ubi supra.

The fact that a person injured through a defect in a highway had previous knowledge of the defect, is not conclusive evidence of negligence on his part, id. Yet towns are not liable for injuries which occur on highways, though they are so low as to be overflowed, if it was imprudent to pass them in such a condition, or if they were passed unskilfully. Farnum v. Concord, 2 N Hamp. R. 392.