Winter 2007 - #5. Gated Ways: Private, Public Highways.

Author:by Paul S. Gillies, Esq.

Vermont Bar Journal


Winter 2007 - #5.

Gated Ways: Private, Public Highways


Gated Ways: Private, Public Highwaysby Paul S. Gillies, Esq.Hiking the Long Trail, after several hours of walking, I came across a highway transecting the trail. It seemed like the strangest thing. It did not fit the landscape. As flat and tailored as it was, it seemed rude, unnatural, and almost offensive, running through the woods like that, on its silly, busy way from one town to another.

Mostly we take roads for granted. We are more concerned with getting somewhere, with the route, the cost of gas, the destination, and what we will do when we get there, than we are with that ribbon of gravel or pavement that stretches from place to place. Part of our complacency comes from the fact that it is free and open. We do not have to ask permission to use it, and rarely is our way impeded, other than the occasional stop sign, red light, or road construction.

There are two species of highway, however, that require us to stop. They are rare today, but they were once a feature of every trip.(fn1) What they have in common are gates. With pent roads, you had to stop, get out of your vehicle (or off your horse), open the gate, move through, stop again, and refasten the gate behind you. With turnpikes and toll roads, you were stopped and made to pay a fee before the gate was raised and you could pass through until you reached another gate further down the road, and another toll.

Both pent roads and turnpikes are private, public highways--private in the sense that they serve a private purpose (the protection of pastures or cultivated fields or the making of a profit) and public in the sense that government has authorized their existence and that anyone can use them, provided you follow the rules or pay the toll. Neither type of highway is considered an open road.

There is a rich legal history involving both types of highways that illustrates the fine tension between private and the public interest in ways no longer obvious to us in an era when the two are so seriously separated. As government has grown, as society has become more sophisticated, a bright line has emerged between the two. Before 1884, most highway maintenance was done by the residents who lived along a road.(fn2) Before 1880, towns were generally liable for damages to buggies, horses, and people, caused by poorly-maintained highways.(fn3) Even earlier, Vermont had legal systems in place whereby men could sue other men to enforce public laws (and often earn a portion of the penalty for their trouble).(fn4) Today, those are discredited ideas, but there was a time when there was not so clear a distinction between public duty and private right (or opportunity).

What Is a Pent Road?

It is no wonder that question has come up again and again over time. Even the legislature was confused when Vermont was young and immature. The first law authorizing their creation, enacted in 1779, called them "private roads."(fn5) That term remained a feature of statute until 1840, when the term "pent road" first appeared.(fn6) Even then, there was confusion.

In 1884, L.S. Brock pushed the Town of Barnet into court to discontinue a road that ran across his fields to lands of William Carrick, arguing that as the road ended at Carrick's farm it must represent a taking of private property for private purposes, in violation of Article 2 of the Vermont Constitution.(fn7)

Judge John Rowell, writing for the Supreme Court, disagreed. He explained,

Though the way was laid out for Carrick's special convenience, yet it is a public way, and Carrick has no right in it nor control over it except in common with the rest of the public, and the easement therein is exactly the same that it is in all other ways laid out by public authority . . . It is objected that the public can have no beneficial use of this way because it leads to nowhere from the highway with which it intersects, but stops at Carrick's farm line, fifty-four rods from his farm buildings. But pent roads are frequently laid only to the land of the persons to be specially accommodated thereby, while they construct connecting ways across their own land, and thus secure the needed outlets; and we think that the laid-out portions of such ways are a part that towns may lawfully supply without supplying the whole way.(fn8)

Charles Challoux left a gate open on a pent road crossing Thomas Judd's land in Canaan ten times during the early 1940s, and Judd pursued him in court to collect the maximum $5.00 fine per incident.(fn9) Challoux defended by saying this was no public highway, there having been no road survey found. But the gates were maintained by the town, and the town had worked the road as well. There was no reason, according to the court, why a pent road could not be laid out by dedication and acceptance.(fn10)

The Judd decision is the last great pent road case, and even then it seemed a historical anomaly. The decision reviewed the law of pent roads, explaining that a pent road is a public road, although gated, and defined "pent" as "penned, shut up, confined, or closed."(fn11)

Apparently the relations of Judd and Challoux were of a long and brooding nature, representing another in that long chain of collisions between the country and the city. Listen to the report of defendant Challoux's position:

The field through which the road extended was used by the plaintiff as a pasture for his cattle. There were no fences along the sides of the road. At times the cattle congregated at the closed gate and this custom resulted in mud and dung being deposited in the road. The defendant testified that it was difficult to avoid soiling his shoes when he got out of his automobile to open and close the gate, and that the cattle impeded his passage. He admitted that he left the gate open on various occasions, although he had been asked to close it by the plaintiff, to whom he said that he would not shut it unless the law required him to do so. He testified that he left the gate open because he wanted to get rid of it, and "to see what the law was going to do about it." The plaintiff's cattle escaped from the pasture when the gate was left open, and the defendant made no attempt to drive them back. It was conceded that the plaintiff had crops growing in the immediate vicinity.(fn12)

Challoux objected to Judd allowing his cattle to occupy the road, but the court was firm in saying that was the whole point of the pent road, to avoid the farmer's costs of fencing along both sides of the road as it passed through his land, as well as keeping cattle out of his crops in the next field over. The jury verdict of $50 and costs was upheld, as was the dignity of the law of pent roads.(fn13)

Present law continues to allow selectboards, by "written allowance," to create pent roads, allowing them to be enclosed and occupied by the adjoining landowner, with unlocked stiles, gates, and bars in places the selectboard designates.(fn14) The fine is now $50.00 for each failure to close the gates.(fn15) That law has not as yet been ruled unconstitutional, as the law relating to division fences was in 1989, as an obsolete relic of a passing agricultural era.(fn16) A dirty roadbed on a pent road is completely legal, and cannot constitute a public nuisance.

Back in 1867, John Wolcott sued James Whitcomb for tearing down the gates he had erected on a pent road. The selectmen had laid out the highway as a pent road, but had not actually decided where the gates should be set, and Wolcott had done that on his own. Whitcomb maintained he could not be required to respect Wolcott's gate unless the government had ordered it put up, but that defense failed when the Supreme Court ruled that, as long as Wolcott's gates did not interfere with the reasonable use of the road, he could put them where he needed them to protect his field.(fn17) This draws the public/private distinction into even deeper waters. If government does not have to say where the gates are placed, does not have to erect them or maintain them, then the pent road begins to look more private than public, and its enforcement seems more a personal matter, particularly when the town is not a party to the suit.

Through dozens of decisions, and the re-codification of the law, it should be clear that a pent road is a public road, even though it is enclosed for private purposes. But the early road records may throw you off. Frequently the selectmen's decision to convert an open highway into a pent road reads like a complete discontinuance of the highway. Only at the end do references to gates and stiles suddenly appear. This tendency...

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