Pratt v. Town of Swanton

15 Vt. 147

• Court: Supreme Court of Vermont
• Decided: January 15, 1843
• Status: Published

Opinion

The opinion of the court was delivered by

Redeield, J.

The questions involved in the decision of the present case do not seem to the court to rest in much uncertainty.

The testimony offered for the purpose of showing, that the town had, in fact, availed themselves of the benefit of the plaintiff’s labor, cannot be considered as having any tendency to charge the town with the expense of such labor. It may be true, that if private persons build a road and the public assume the use of it, or, which is the same thing, it is dedicated to public use, and the proper authorities of the town, from time to time, repair it, the town may thereby become liable to continue to keep such road in repair, and even to answer for damages sustained by reason of any “ insufficiency or want of repairs ” therein. But this does, in no sense, make the town liable for the expense of building such roads. The towns have no interest, or property, in their roads. They are an onerous burden. In the ease supposed, the law does not presume that they employed such persons primarily to build the roads, but that, by repairing the same and suffering them to remain open to public use, they have given the public to understand that they had assumed the burden of maintaining them.

This view of the matter seems to be a sufficient answer to every part of the case, except the proceedings of the meeting of the town, January 12th. There is no other action of the town upon the subject, in the mode in which alone they can act in their corporate capacity, i. e. in town meeting legally warned and holden. For it is in vain to say that the conduct of the town officers or of the inhabitants of the town, shall be sufficient to ratify and confirm the informal proceeding of an irregular meeting of the inhabitants, or a portion of them, and thus make them, by implication, binding upon the town, when it is admitted that those persons have no authority to bind the towns in the same matters even by express contract. The meeting of January 12th, was warned on the first day of the same month. This gave but eleven days’ notice, unless we reckon both days of the extreme dates, which is contrary to the mode of computing time in this state in analogous cases, as established by long usage, and sanctioned by repeated judicial determinations. In the service of writs and executions, advertising property, &c. in reckoning a given number of days, it has always been practiced to exclude the day of the act. We adopt the same rule here, and this determines the meeting irregular. The votes of such a meeting are no more binding upon the town than if the meeting had been held without notice, or had been a mere fortuitous assembling of any portion of the inhabitants of the town.

Judgment affirmed.