Pomeroy v. Mills

3 Vt. 410

• Court: Supreme Court of Vermont
• Decided: January 15, 1831
• Status: Published

Opinion

Hutchinson, C. J.,

pronounced the opinion of the Court.This action was before this Court a year ago this present term, and was heard upon a case very similar to the present, and a new trial was granted to the plaintiff. The question about tenancy in common, of plaintiff and defendants, was not then urged. No other material question is newly raised. The decision of this Court, granting the plaintiff a new trial, established his right to recover the premises, as against the defendants, considering them strangers to title under any proprietors. That decision seems not yet reported, * and I would not ~reatly anticipate the report, but yet explain concisely the grounds of decision,as the same question is now urged, with considerable confidence, by the defendants' counsel. It appears by the case and papers referred to, that the proprietors of the township of Burlington, on the twenty sixth day of June, 1793, voted as follows, to wit, " That the block containing two and half acres of land, whereon the court-house and jail are built in said Burlington, shall and hereby is set oft for the use of the public, for erecting all necessary county and town buildings, for public use." This vote implies, that the plot had before acquired a known boundary, so that an allusion to it as the plot, whereon the court-house and jail were then erected, was a sufficient description in the vote. The land now in dispute lay open for public use till 1821, about twenty three years before the erection by the defendants. It is highly proper and necessary, that public buildings should be accommodated with a vacant common, for the convenience of the public, that would use such public buildings. The quantity of land, appropriated in this case, shows, that a public common, as well as a place for public buildings, was intended. Such a common is as a public highway, both as respects the public and the original owners. Every individual may travel upon either at pleasure; but he must exercise no right over either, but such as every other citizen may exercise. The erection of an edifice upon such a highway, or common, for private use, destroys the public use. And he, who thus encroaches upon the rights of THE public, is liable to be indicted for the nuisance ; or the original owner of the soil may maintain trespass or ejectment, as the case may require, and recover his damage just as if there had keeíl no dedication to the public ; for all the rights any individual may enjoy, consistent with the dedication to the public, belong exclusively to the original owners of the soil. If the plaintiff recovers in ejectment, he must hold only in a way consistent with the rights of the public. He may be liable to an indictment for continuing the nuisance, should he continue it. But no individual, as such, can call him to account for that, which is no injury to such individual, otherwise than in common with the rest of the community.

But it is urged against the plaintiff’s right to recover, that, if he recovers, the defendants will be entitled to betterments, they having entered under a lease from the select men, executed according to the vote of the town. If this be so, still it forms no bar to a recovery. If the plaintiff has a right, he must recover ; and, if he chooses to pursue his right in an action at Jaw, lie must claim subject to the rights the law secures to the defendants. That is, if the defendants are entitled to betterments,the plaintiffmust pay them, or risk a levy upon the premises. But how is the fact ? The defendants have taken a lease, permanent in the outset, but liable to be defeated by the town’s paying for improvements made by the defendants. This is a lease of a small piece of land notoriously a part of the public common. It had long been used as such without interruption. If the defendants had taken a lease of a part of any man’s farm and gone into possession under it, they might nearly as well talk about a supposed title as in the present case. But what are the betterments in this case ? A mere public nuisance, liable to be prostrated, by the proper mandate of the law, at any time. There can be no value; nothing to recover in the form of betterments.

But, as having some bearing upon this point, and more still upon the tenancy in common, it is said, the town have a right to possess certain public rights of land in town. I should think it 'doubtful whether the town could be tenants in common with other proprietors, in consequence of their control over any public rights. The law provides for their taking the use in a certain way ; but supposes the rights severed from the other lands, by the proprietors, and gives the towns no agency in this severance. They probably might proceed in chancery and compel a severance. Be this as it.may, the right given to the town ¡£ to lease out, in a certain way prescribed by law, tbe land thus put under control, and apply the rents to such definite purpose as the law allows. Now, there is nothing about this lease that indicates to what right this land belongs, or that marks the lógal'destiny ofthe rent. Indeed, the town assumes to be absolute owner of this land, without reference to any public right whatever ; and their lease does not amount to a supposed title. Moreover they assume an exclusive ownership. Such a lease ofthe premises, if their be a co-tenant, is void as against such co-tenant. He would be entitled to his partition, and to hold where bis portion fell, just as if no lease were made, and such buildings weré erected as mere acts of trespass. If it were not so, this lease ofthe entirety, and holding under it in such an exclusive manner, as appears in the case, is itself an ouster, and the plaintiff was under no necessity to make a demand to be let in as tenant in common, before commencing his action. The plaintiff has shown a good title as against a stranger to title, and the defendants have shown no title that can avail them.

Pomeroy & Allen, for plaintiff. C. Adams, Bailey & Marsh, for defendants.

The judgement of tbe county court is reversed, and a new trial is granted.