Hicks v. Fish

12 F. Cas. 116, 4 Mason C.C. 310

Opinion

STORY, Circuit Justice

(summing up to-the jury). The court are dear that the highway was not originally laid out by the committee beyond the Great Pine Swamp. Up to that place, it had sufficient certainty of description and location. Beyond that the road was to be in the most convenient way to the highway at the north end of Little Pond. Now a highway cannot be legally created by such a description as this. It must have some definite location and boundaries. It is not sufficient to say, that it shall be in the most convenient direction; that direction must be actually fixed, before it has an existence as a highway. But the evidence of so long a use of-the way as a highway, proved by witnesses from forty to sixty years bach, is very strong presumptive proof, that this convenient way was afterwards actually laid out and adopted by the proprietors, though the record cannot now be found. Such a long use is, unless rebutted by other evidence, conclusive evidence of a dedication of the ■way to the public. It appears to us, therefore, if the jury believe the evidence, -it warrants a verdict for the defendant.

Verdict for the defendant.