Volume 90 — Sickels

<p>A town, in its corporate capacity, has power to take lands for highway purposes, by conveyance voluntary or otherwise. ■</p> <p>The power to take by voluntary conveyance implies the power to take such interest as the necessity of the case, or the public good, may require, and so, where a use for only a portion of the year is required, the town may take a conveyance limited to such use.</p> <p>In proceedings under the statute, the highway commissioners of a town made an order laying out a highway. The landowners appealed therefrom, and while the matter was pending before referees, said owners, for the purpose of inducing the referees to reverse the order appealed from, executed and delivered to them a deed to the town of an interest in the land described in the order, which inter--st was described in the deed as “the perpetual right of use of the above-described road during the time intervening between the first day of December and the first day of May in each and every year.” The town was granted “ the right to enter upon and work said road at any season of the year, provided that, at any other period than the one above mentioned, the gates upon said road shall be kept closed.” The referees, influenced by the deed,- reversed the order, and filed the deed and their order with the town clerk. The commissioners of highways directed the road to be worked as a highway, and it was so cared for and worked for two years. In an action by the owners to restrain the overseer of highways, and others acting under him, from working said road as a highway, held, that the deed was valid, and vested a title in the town according to its terms and for the purposes mentioned therein; and so, that the complaint was properly dismissed.</p> <p>Also held, that conceding the deed to be invalid, the court below had power in its discretion to deny the equitable relief sought, and leave the plaintiffs to their remedy at law.</p> <p>After the delivery and acceptance of the deed, and a recognition of the road as one of the town highways, a resolution, was passed at a town meeting “not to accept the road.” Held, that this did not effect a discontinuance of said highway.</p> <p>A town meeting has no power to discontinue a highway once established: that can be done only by the intervention of the authorities, and according to the procedure prescribed by statute. (1 E. S. 503, § 3.)</p>