In a suit to enjoin a railroad company from erecting a fence on or near a highway crossing, the plaintiff must establish the existence of the highway at the place in question. Under an allegation that among the public highways within the city is one known as Maple Avenue, across which highway the defendant railroad company threatens to erect a fence, the plaintiff may show that the locus was a public highway, whether as part of said avenue or of another and older highway. The parties entitled to a private way of necessity over the tracks of a railroad company, may prevent the erection of a fence which obstructs the right of way, in a suit brought by them for that purpose. In order to establish the fact that a highway was one not originally laid out by the General Assembly or County Court, but was one so laid out as to be subject, under the statute (§ 2056), to discontinuance by the selectmen with the approbation of the town, it is not always necessary that direct evidence should be offered to that effect. In the absence of proof to the contrary, the presumption of law is that a town and its officers in discontinuing a highway act in accordance with law. This presumption serves the purpose of evidence in making out a prima facie case. Such a presumption is strengthened by the public character of the act done, the length of time it has passed unchallenged, and the cessation of public use following the discontinuance of the highway. The fact that the only map of an old highway is on file in the town clerk's office — the lawful place of custody in the case of a road laid out by the selectmen with the approbation of the town — would, after a long lapse of time (in the present case sixty-four years), and in view of the nonuse of the road, justify the conclusion as one of fact that such was the original source of the layout. The approbation of the town to the discontinuance of a highway may either precede or follow action by the selectmen. In discontinuing a highway, the statutory method must be strictly followed, and the approbation of the town must be of the precise act of discontinuance made by the selectmen. In determining what road was discontinued, the termini are the most distinctive marks, and are not controlled by a statement or the length of the road.
WHEELER, J.
The city of New London seeks to restrain the defendant railroad from erecting a fence on or near the railroad crossing over one of its public highways known as Maple Avenue. It was therefore the duty of the plaintiff to establish the existence of this public highway at this crossing. It attempted to do this on the trial by showing (1) that the public had acquired, by user or dedication, the right to travel over this crossing, (2) that this was a highway, because a part of the old road, known as the Harbor's Mouth Road, or Old Harbor's Mouth Road.
The attempt in support of ground one was confined to proof of acts subsequent to Public Acts of 1883, chapter 107, § 2. The court excluded the offer because of this Act, providing that "whenever a new highway or a new portion of a highway shall hereafter be constructed across a railroad, such highway or portion of highway shall pass over or under the railroad, as the railroad commissioners shall direct." No error is predicated upon this ruling.
The defendant claims that the allegation that this highway was a part of Maple Avenue precludes the plaintiff from proof that it was a part of another highway. We think, however, the allegations are broad enough to admit of proof that the locus was a public highway, whether as part of an old highway, or as part of a new highway. Further, we do not find this among the assignments of error.
The finding of the court that this crossing was a private way, and a way of necessity for the owners and occupants of the Simmons house from 1845, would, if the action had been brought by such owners, have prevented the erection of the proposed fence. But the case does not seek the protection of a private way, but of a public highway. The plaintiff's contention on the trial was that the locus was a part of the Harbor's Mouth Road, while the defendant contended that this old road had been legally discontinued.
Only two of the remaining assignments of error are pursued by the plaintiff. The first, the holding of the trial court that the Old Harbor's Mouth Road was discontinued, without evidence either that the road was not laid out by the General Assembly or the County Court, or that it was laid out by the selectmen with the approbation of the town. The second, the holding that the action of the town and selectmen effected a discontinuance.
It was not necessary that evidence should be offered that this road was not laid out by the court or General Assembly. In the absence of proof to the contrary, the presumption of law is that the town and its officials acted in accordance with the law. This presumption serves the purpose of evidence in making out a prima facie case. It is strengthened and enforced by the public character of the business, the length of time these public acts have passed unchallenged, and the cessation of public use following the discontinuance.
The fact that the only map of this old road has been on file in the town clerk's office — the lawful place of custody had the road been in fact laid out by the selectmen with the approbation of the town — would, after this length of time and nonuse, justify the conclusion, as one of fact, that such had been its original source of layout.
The presumption, after this length of time and in the absence of evidence to the contrary, that the town and its officials acted within the law and in accord with their duty, finds expression in the legal maxims, ex diuturnitate temporis omnia proesumuntur rite et solenniter esse acta, and Omnia proesumuntur legitime facta donec probetur in contrarium. Our decisions furnish many examples of the application of the presumption. Seymour v. Over-River School District, 53 Conn. 502, 510, 3 A. 552; Keating v. Macdonald, 73 Conn. 125, 130, 46 A. 871; Hamilton v. Smith, 74 Conn. 374, 377, 50 A. 884; State v. Main, 69 Conn. 123, 140, 37 A. 80.
The precise question here raised is not an open one in this State; it was decided adversely to the defendant's claim in Brownell v. Palmer, 22 Conn. 107, and the argument of that opinion requires no further elaboration.
The selectmen could discontinue only with the approbation of the town. Statutes, 1838, pp. 344, 346. This might be given before or after action by the selectmen. The method of discontinuance provided by statute must be strictly followed. Greist v. Amrhyn, 80 Conn. 280, 68 A. 521. Approbation of the town must be of the precise act of discontinuance made by the selectmen. Welton v. Thomaston, 61 Conn. 397, 399, 24 A. 333.
The single particular in which the discontinuance is said to be defective is that the selectmen discontinued a part of the old road, while the approbation of the town was given to its discontinuance for its entire length. The length of road discontinued, given in the vote of the town as ninety and one half rods, and in the certificate of the selectmen as sixty rods, does not control in law. The termini are the most distinctive marks of the portion discontinued. Clark v. Middlebury, 47 Conn. 331, 335. As we read the finding, the vote of discontinuance by the town and the action of the selectmen related to the same road, and the same portion of the road, and we are not at liberty to construe these votes, were we so inclined, contrary to this definite finding. The presumption of regularity in official action, coupled with the nonuse since 1845 of the old road as a public highway, would, at this interval of time, make any other conclusion unsupportable.